Citation Nr: 1318037 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 05-29 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for arteriovenous (AV) malformation status post left parietal craniotomy. 2. Entitlement to service connection for a disability of the hips. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1968. This matter comes to the Board of Veterans' Appeals (Board) from a May 2009 Memorandum Decision and June 2009 Judgment of the U.S. Court of Appeals for Veterans Claims (Court). In a June 2007 decision that also adjudicated other claims for service connection, the Board denied the claim for service connection for a disability of the hips and reopened the claim for service connection for AV malformation status post left parietal craniotomy but denied it on the merits. The Veteran appealed the Board's decision to the Court. Following the submission of briefs from both parties, the Court issued a Memorandum Decision on May 11, 2009, which vacated the Board's decision pertaining to the denial of service connection for a disability of the hips and for AV malformation status post left parietal craniotomy and remanded the issues for further development and, if necessary, readjudication consistent with the decision. Judgment was entered on June 2, 2009. In December 2009, the Board reopened the claim for service connection for AV malformation status post left parietal craniotomy based on new and material evidence being received, and remanded this claim, as well as the issue of service connection for a disability of the hips on the merits. Unfortunately, additional development is still necessary in this case. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. When this matter was before the Board in July 2012, a remand was ordered. The remand directed that the AMC obtain private treatment records pertaining to brain or hip surgery from St. Joseph Medical Center in Houston, Texas, dated March 1979 to March 2010. As noted in the July 2012 remand, the Board indicated that while the Veteran submitted records from the facility dated 1979, 1983, and from 2008 to 2009, these records do not encompass the entire date range the Veteran indicated that he received treatment, nor do they reflect any surgery for the hips. The Board concluded that it is "possible" that there are still outstanding relevant records from St. Josephs Medical Center. In a July 2012 letter to the Veteran, the AMC requested that the Veteran complete the VA Form 21-4142, Authorization and Consent to Release Information, to obtain the stated records from St. Joseph Medical Center in Houston, Texas. In an April 2013 supplemental statement of the case (SSOC), the AMC indicated that the Veteran sent in copies of private treatment records from St. Joseph that he had in his possession as well as responses from St. Joseph Medical Center indicating that there were no records for the Veteran from 1979 to 2003. Additionally, the AMC indicated that the Veteran did not provide a completed authorization and release form to obtain any records from St. Joseph Medical Center. Upon review of the evidentiary record, the private treatment records submitted by the Veteran are duplicates of previously submitted records. Additionally, there are no responses from St. Joseph Medical Center indicating that there were no records for the Veteran from 1979 to 2003. More importantly is a completed VA Form 21-4142 from the Veteran to obtain records from the St. Joseph Medical Center. As reflected in the July 2012 Board remand, even though the Veteran indicated that he had exhausted all of "his" resources in attempting to obtain these records, the prior Board remand indicated that the RO should attempt to obtain these records. Therefore, the directives of the Board's remand were not substantially complied with in this regard. As such, because of the aforementioned procedural deficiencies, the Board's remand instructions were not complied with, and another remand is needed in order to ensure compliance. If any action required by a remand is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. While the Board regrets the delay, another remand is required. See Stegall v. West, 11 Vet. App.-268 (1998). Finally, a relevant medical opinion is not in the claims file or electronic ("Virtual VA") file. Specifically, according to the SSOC dated April 2013, an independent medical opinion was obtained in April 2013. However, the April 2013 independent medical opinion has not been associated with the claims file or the Veteran's Virtual VA file. The April 2013 independent medical opinion is relevant to the issues on appeal and an attempt to obtain this opinion must be made. To ensure that VA has met its duty to assist the Veteran in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is again REMANDED for the following action: 1. Using the Veteran's completed VA Form 21-4142, obtain relevant treatment records pertaining to brain or hip surgery from the St. Joseph Medical Center in Houston, Texas, dated March 1979 to March 2010. All attempts to procure records should be documented in the file. All records and/or responses received should be associated with the claims file. 2. Associate with the claims file the April 2013 independent medical opinion referenced in the April 2013 SSOC. Failure to provide the above stated evidence warrants automatic rescheduling of a new independent medical opinion. 3. Once such development is completed, readjudicate the claims on appeal. If the benefits remain denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC), and the case should be returned to the Board. 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). _________________________________________________ KELLI A. KORDICH Acting 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).