Citation Nr: 1316482 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 09-32 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a sinus condition. 2. Entitlement to service connection for a cervical spine disorder, claimed as cervical spondylitis. 3. Entitlement to a rating in excess of 10 percent for chondromalacia patella of the right knee. 4. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee with crepitus. 5. Entitlement to an initial rating in excess of 10 percent for removal of semilunar cartilage, right knee. 6. Entitlement to an initial rating in excess of 10 percent for removal of semilunar cartilage, left knee. 7. Entitlement to an initial rating in excess of 10 percent for left slight patellar subluxation. WITNESSES AT HEARING ON APPEAL Appellant and brother ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran had active military service from March 1972 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April 1997 and November 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The April 1997 decision denied a rating in excess of 10 percent for the left knee disability and a compensable disability rating for the right knee. The Veteran filed a notice of disagreement with respect to these determinations in January 1998. Pursuant to a rating decision dated in March 1998, the RO granted a 10 percent evaluation for the right knee disability and the Veteran subsequently submitted documentation stating that his appeal was satisfied only with respect to the right knee. While his notice of disagreement as to the left knee disability remained pending, a statement of the case did not issue until August 2009. The November 2007 rating decision denied a rating in excess of 10 percent for the service-connected right knee disability. In September 2011 a Board hearing was held before the undersigned Veterans Law Judge. The transcript of that hearing is of record. In November 2011, the Board issued a decision remanding the issues of entitlement to service connection for a sinus condition, entitlement to service connection for a cervical spine condition, entitlement to service connection for an acquired psychiatric condition to include PTSD, entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left knee with crepitus, and entitlement to a disability rating in excess of 10 percent for chondromalacia patella of the right knee to the RO via the Appeals Management Center (AMC), in Washington, DC. In an October 2012 rating decision, the AMC awarded service connection for PTSD and assigned a 70 percent rating for that disability. That issue is therefore no longer on appeal. Additionally, in a January 2013 rating decision, the AMC granted service connection for removal of semilunar cartilage of both knees, and left slight patellar subluxation, and assigned a separate 10 percent rating for each of these disabilities effective from the date of claim in April 2007. As these issues relate to the larger appeal issues of increased ratings of the knees, the Board finds that they are presently on appeal. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran's claims were previously remanded by the Board in November 2011 for further development. As will be further discussed below, the Board finds that the agency of original jurisdiction (AOJ) did not substantially comply with the remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Consequently, the Board regrettably must again remand this case. Specifically, the November 2011 Board remand noted that the Veteran had been treated by certain health care providers and records for all identified periods of treatment had not been sought. The remand noted as follows: The Veteran indicated that he had an operation on his sinuses in 1995 by Dr. Bedford. A review of the Veteran's file indicates that the records of this operation are not included in the Veteran's file. Furthermore, it is noted that the Veteran authorized the release of records of Dr. Pratt, dating from 1999 to 2007, to VA. When the RO attempted to obtain the records, the reply from the Memphis Spine Center in June 2007 was that the Veteran had not been seen at the Memphis Spine Center, which opened December 1, 2004, and that OrthoMemphis should be contacted for medical records dated prior to December 1, 2004. It was further explained that Dr. Pratt was not able to take any records from OrthoMemphis when he left in October 2004. It appears that the Veteran has submitted records from the Orthopedic Clinic in Memphis dated in 1999 and 2000. To the extent that it is unclear if there are any additional records that have not yet been submitted, the Veteran should again be requested to provide or authorize VA to obtain such records. Thus, the Remand order instructed the RO as follows: Ask the Veteran to provide or identify any medical records pertaining to his claims that are not already associated with the claims folder, to include records from Drs. Bedford, Klein, and Pratt. Then attempt to obtain any identified records, provided that the necessary authorization forms are completed. If any records requested are not ultimately obtained, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). In his testimony before the undersigned, the Veteran stated that he had been treated by a Dr. Klein from 1992 to 1999 for neck and psychiatric problems. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). In this case, the Veteran completed consent to release forms, and, thereafter, the AMC requested medical records from Dr. Pratt and Dr. Beckford. It does not appear that a request for records was sent to Dr. Klein. The AMC was informed in October 2012 that there were no record of treatment of the Veteran with Dr. Beckford. The letters to Dr. Pratt were returned as undeliverable. However, there is no indication in the report of contact that the Veteran was informed pursuant to 38 C.F.R. § 3.159(e) of the efforts VA made to obtain the records; a description of any further action that would be taken regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and a notice that the claimant is ultimately responsible for providing the evidence. Under Stegall v. West, 11 Vet. App. 268, 271 (1998), where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Additionally, the Board observes as to the claim for an increased rating for degenerative joint disease of the left knee, an April 1997 rating decision denied such a rating, along with a compensable rating for the right knee chondromalacia. The Veteran disagreed with this rating decision. A 10 percent rating was thereafter assigned for the right knee. The Veteran indicated in February 1998 that this action satisfied his appeal only on the issue of the right knee. No further action was taken on the left knee claim, and the next documents in the claims folder include his current claim from 2007. As such, the appeal for increased rating in excess of 10 percent remains in open and unaddressed since that time. As the Veteran was never provided a statement of the case in response to the notice of disagreement as to the April 1997 rating decision on the issue of an increased rating for degenerative joint disease of the left knee, the issue remains on appeal. Remand is required so that the appropriate appeal period may be addressed. Specifically, the AOJ should address the relevant time period based on the date of claim for the April 1997 rating decision to the present in a supplemental statement of the case. Under the circumstances, the Board finds that an additional attempt should be made to locate any other relevant treatment records for the knee. Specifically, the Veteran should be asked to identify any additional treatment sources who treated him for the left knee disability dating from February 1995 to the present. Finally, it appears that there may be additional relevant medical records that have not yet been requested. Specifically, the Veteran submitted documentation from Dr. Spektor and medical records dated in 1995, which indicated that the Veteran was seen for many years for sinus complaints. Accordingly, it appears that additional records may be available that are relevant to the sinus claim. Additionally, orthopedic treatment records from Spine Memphis reflect references to treatment by Drs. Krahn and Garland in November 1999, but there is no documentation of attempts to get records from these sources. There are also references to treatment by Dr. Mays and Dr. Cunningham. In a statement dated in December 2011, the Veteran reported that he sought treatment from the VA Medical Center after his retirement in July 1992. He should be asked to provide information as to the location of the facility where he was treated and the approximate dates of treatment and attempts should be made to obtain the records. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he should provide or identify any medical records that are not already included in his VA claims folder that may support his claims, including those pertaining to the left knee that date from 1995. He should also be asked to identify the VA facility where he was treated after his retirement in July 1992 and the approximate dates of treatment at that facility. Attempt to obtain any identified records, including records from Drs. Spektor, Krahn, Garland, Klein, Mays, and Cunningham, provided that the Veteran has authorized their release. If, after making reasonable efforts to obtain named non-VA records the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Inform the Veteran that the aforementioned medical records dated from Drs. Pratt and Beckford, for the time periods noted above, were unsuccessfully requested pursuant to 38 C.F.R. § 3.159(e). Provide notice to the appellant that explains the efforts VA made to obtain the records; a description of any further action that will be taken regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and a notice that the claimant is ultimately responsible for providing the evidence. 3. Obtain VA medical records not already of record, including those identified by the Veteran in response to Step 1. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 4. The RO or the AMC should also undertake any other development it determines to be warranted. Then, the RO or the AMC should readjudicate the Veteran's claims, including the claim for increased rating for degenerative joint disease of the left knee that has been pending since February 1996. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran should be furnished a supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).