Citation Nr: 1317027 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 07-26 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for bilateral knee disability. 2. Entitlement to an evaluation in excess of 30 percent for service-connected depressive disorder, not otherwise specified (NOS). 3. Entitlement to a compensable initial rating for service-connected left ear hearing loss. REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served in the Puerto Rico Army National Guard and Army Reserves, with active duty from May 1983 to July 1983, from February 1991 to April 1991, and from January 2003 to February 2005, with service in support of Operation Enduring Freedom from May 2003 to August 2003. The matter of entitlement to service connection for bilateral knee disability is before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico. The Veteran's claim was previously before the Board in July 2009, October 2010, September 2011, and October 2012, when it was remanded for further evidentiary development. The case has been returned to the Board for further appellate consideration. The claim is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. REMAND Bilateral Knee Disability The Veteran claims that he has a bilateral knee disability that is causally-related to his active duty. After review of the record, the Board finds that VA has not satisfied its duty to assist, and thus, another remand is necessary. During the pendency of the present appeal, the RO has adjudicated unrelated claims. The Veteran's electronic (Virtual VA) file reflects that these decisions allude to evidence that is not available for review by the Board. Specifically, although the most recent VA treatment records associated with the Veteran's VA claims file and Virtual VA file are dated to June 12, 2012, an April 30, 2013 rating decision reflects that the RO obtained and reviewed VA treatment records dated to April 19, 2013, and a Special Gulf War Protocol examination report received on December 28, 2011. The Board cannot be certain that such records only pertain to current treatment or evaluation of disabilities more than a decade after service, and do not potentially contain information pertinent to the service connection issue on appeal. The United States Court of Appeals for Veterans Claims (the Court) has held that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Further, the RO or AMC has not considered this additional evidence in conjunction with adjudication of the service connection issue on appeal, in compliance with Bernard v. Brown, 4 Vet. App. 384, 394 (1993), and the Veteran has not waived consideration of such by the Agency of Original Jurisdiction (AOJ) in the first instance. 38 U.S.C.A. § 20.1304(c). Therefore, the Veteran's claim must be remanded so that these outstanding VA treatment records may be obtained, associated with the record, and considered by the AOJ in the first instance with respect to the Veteran's service connection claim. 38 U.S.C. § 5103A (West 2002). Increased Evaluation Claims The Veteran's electronic (Virtual VA) file reflects that the RO, inter alia, denied the Veteran's claim for an evaluation in excess of 30 percent for service-connected depressive disorder, NOS, by a September 2011 rating decision. In an October 2011 rating decision, the RO granted the Veteran's claim to establish service connection for left ear hearing loss; a noncompensable (zero percent) evaluation was assigned, effective from April 4, 2011. The Veteran's electronic (Virtual VA) file reflects that the Veteran was issued letters dated November 7, 2011 and March 15, 2012 which reflect that the RO was in receipt of notices of disagreement as to the rating decisions dated in September 2011 and October 2011. The letters indicated that the RO would initially try to resolve his disagreements through the Post-Decision Review Process, and that if the benefits sought could not be granted, he would be issued a statement of the case. To date, neither the claims folder nor the Veteran's electronic (Virtual VA) file reflect that the benefits sought have been granted, or that a statement of the case has been issued as to those matters. 38 C.F.R. § 20.201 (2012). Where a statement of the case has not been provided following the timely filing of a timely notice of disagreement, a remand, not a referral is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). However, these issues will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record all records of VA treatment from the VA Medical Center in San Juan, Puerto Rico, dated from June 12, 2012 to the present, and a Special Gulf War Protocol examination report received on December 28, 2011. 2. Issue a statement of the case pursuant to the notices of disagreement received addressing the issues of (1) entitlement to an evaluation in excess of 30 percent for service-connected depressive disorder, NOS (September 2011 rating decision), and (2) entitlement to a compensable initial evaluation for service-connected left ear hearing loss (October 2011 rating decision). Manlincon, 12 Vet. App. 238. The statement of the case should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. The Veteran should be advised of the time period in which to perfect his appeal. Only if the Veteran's appeal as to these issues is perfected within the applicable time period should such issues be returned to the Board for appellate review. 3. Thereafter, subsequent to taking any other further development deemed necessary in light of the evidence of record, adjudicate the issue of entitlement to service connection for a bilateral knee disability. If any benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ U.R. POWELL 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).