Citation Nr: 1316628	
Decision Date: 05/21/13    Archive Date: 05/29/13

DOCKET NO.  09-21 124	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an increased rating for left sacroiliitis, currently evaluated as 10 percent disabling.

2.  Entitlement to an increased rating for left knee patellar tendonitis, currently evaluated as 10 percent disabling.

3.  Entitlement to an increased rating for bilateral pes planus, currently evaluated as 10 percent disabling.


REPRESENTATION

Appellant represented by:	Clayte Binion, Attorney at Law



ATTORNEY FOR THE BOARD

K. Curameng, Counsel


INTRODUCTION

The appellant in this case is a Veteran who had active duty service from February 2002 to January 2006.

This matter came to the Board of Veterans' Appeals (Board) from a May 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  This matter was remanded in December 2010 for further development.  

Although the appeal also originally included the issue of service connection for psychiatric disability (claimed as posttraumatic stress disorder (PTSD)), this benefit was granted by rating decision in December 2012.

In the May 2008 rating decision, the RO denied an increased rating for pes planus.  The Veteran appealed.  By rating decision in December 2012, the RO granted an increased rating of 10 percent, effective February 2011.  Although an increased rating has been granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned.  AB v. Brown, 6 Vet. App. 35 (1993).  

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

In December 2010, the Board noted that it was unclear whether VA treatment records prior to September 2007 that were submitted by the Veteran were complete.  As a result, the Board remanded the claim, in part, to associate all VA treatment records from the date of discharge to September 2007.  In the case of Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand.  It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance.  There does not appear to be any documentation in the claims file evidencing any RO attempt to obtain copies of VA treatment records from January 2006 to September 2007.  Only VA treatment records from April 2009 onward were obtained and uploaded onto the Veteran's Virtual VA file.

Although the Board regrets further delay, the case must be returned to the RO for additional development. 


Accordingly, the case is REMANDED for the following actions:

1.  Appropriate actions should be taken to obtain copies of all VA treatment records from January 2006 to September 2007.

2.  After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issues on appeal.  The RO should issue an appropriate supplemental statement of the case, and give the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

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).



_________________________________________________
ALAN S. PEEVY
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).