Citation Nr: 1318686 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 08-38 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a left knee and shin disorder (also claimed as Osgood-Schlatter's Disease), to include as secondary to the service-connected disabilities of the right knee and right hip. 2. Entitlement to service connection for a left hip disorder, to include as secondary to the service-connected disabilities of the right knee and right hip. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from July 1996 to October 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). The claims file was subsequently transferred to the jurisdiction of the RO in Winston-Salem, North Carolina, upon the Veteran's relocation. In July 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. In December 2012, the Board remanded the claims for additional development and adjudicative action. The case was returned to the Board for further appellate review. The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in her claims file. 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, 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. The Board finds that this appeal must be remanded to obtain an adequate examination that complies with the directives of the December 2012 remand. A Court or Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Additionally, VA records are considered part of the record on appeal since they are within VA's constructive possession. Because VA has notice of the existence of additional VA records, they must be retrieved and associated with the other evidence already on file. See Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Epps v. Brown, 9 Vet. App. 341 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995). When the matter was before the Board in December 2012, a remand was ordered. Specifically, the remand directed that the AMC obtain all outstanding VA treatment records from the Spokane and/or Walla Walla VA treatment facilities dated since September 2010, and any available records from Spokane Orthopedics. However, the Board finds that the AMC did not comply with the specific directives mentioned above. Upon review of the claims file, the AMC sent a letter to the Veteran in February 2013 requesting that he complete a VA Form 21-4142, Authorization and Consent to Release Information form, for Spokane Orthopedics, but there is no mention of the AMC obtaining updated VA treatment records from the treatment facilities in Spokane and/or Walla Walla, Washington. Additionally, there is no mention of the AMC attempting to obtain the VA treatment records in the April 2013 Supplemental Statement of the Case (SSOC) or in the Veteran's Virtual VA file. As such, it remains unclear as to whether the RO attempted to obtain the VA treatment records from the Spokane and/or Walla Walla VA treatment facilities dated since September 2010. As such, because of the aforementioned procedural deficiency, 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). In accordance with the Board's remand, the Veteran was scheduled for a VA examination in March 2013, but he failed to report. As the case must be remanded for the foregoing reason, the Veteran should also be provided with another opportunity to report for VA examination. 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. Obtain and associate with the claims file all outstanding records of treatment dated since September 2010 from the Mann-Grandstaff VA Medical Center in Spokane, Washington, and/or the Jonathan M. Wainwright Memorial VA Medical Center in Walla Walla, Washington. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 2. Thereafter, schedule the Veteran for a VA orthopedic examination. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests should be accomplished. The examiner is requested to provide a diagnosis of any left knee/shin and left hip disorders found to be present (i.e., Osgood-Schlatter's Disease, chondromalacia, tendinitis, bursitis, etc.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left knee/shin and left hip disabilities had their clinical onset during active service or are related to any in-service disease, event, or injury. In providing this opinion, the examiner should consider the Veteran's report of continuing left knee/shin and hip symptoms since service. If the answer to the above question is negative, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left knee/shin and left hip disabilities or were either (a) caused by, or (b) aggravated by the Veteran's right knee and/or right hip disorders, to include any associated altered gait. The examiner must provide a comprehensive report including complete explanations for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. If the Veteran fails to report for the above scheduled VA examination, a copy of the notice letter scheduling him for that examination must be associated with the claims folder. 4. If the Veteran does report for the above scheduled VA examination, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 5. Finally, after undertaking any other development deemed appropriate, re-adjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with an SSOC and afford them an opportunity to respond before the record is returned to the Board 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). _________________________________________________ P.M. DILORENZO 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).