Citation Nr: 1318805	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  09-40 711	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to an evaluation in excess of 20 percent for post-operative left patella-femoral pain syndrome, to include on the basis of scars.


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

M. Scott Walker, Counsel


INTRODUCTION

The Veteran had service from 1973 to 1993 in the Missouri Air National Guard, when she retired with more than 20 years of service.  The Veteran has been granted service connection for a left knee disability incurred during her final enlistment, and her status as a Veteran has been established.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA).  The Veteran's claim was remanded by the Board in April 2012 for additional development.

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 on her part.


REMAND

In a Report of General Information, dated March 20, 2013, the Veteran identified pertinent information which is currently outstanding.  Specifically, she indicated that she was seen at her local VA medical center in Missouri, and she requested that the RO obtain the information before the Board made its decision on her claim.  See 38 C.F.R. §§ 19.37, 20.1304.  

The Board notes that this outstanding evidence, per the Veteran, is pertinent to the claim, and that it appears that the evidence was created following recertification to the Board.  Applicable VA regulations require that pertinent evidence must be referred to the agency of original jurisdiction for review and preparation of an additional supplemental statement of the case unless this procedural right is waived in writing by the appellant.  See 38 C.F.R. §§ 19.37, 20.1304 (2012).  

In cases such as these, VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate her claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012).  Therefore, on remand, it should be determined whether an additional VA outpatient report exists and, if so, that report should be associated with the record.  

After the additional evidence has been associated with the claims file, to the extent available, the RO shall readjudicate the claim with the benefit of consideration of all evidence added to the file since the most recent SSOC issued in November 2012.

Accordingly, the case is REMANDED for the following actions:

1.  The RO/AMC should attempt to obtain and associate with the Veteran's claims file any outstanding VA outpatient treatment records from February 2012 (the date of the most recent VA outpatient report in the Virtual VA system) to the present.

If the records are not available, or if the search for the records yields a negative result, that fact should be clearly documented in the claims file, and the Veteran notified of the efforts that were made to obtain such records.  

2.  The RO/AMC shall readjudicate the Veteran's claim as to entitlement to an evaluation in excess of 20 percent for post-operative left patella-femoral pain syndrome, to include on the basis of scars, to include consideration of any additional evidence received as a result of this remand, as well as any additional evidence obtained prior to RO readjudication.  If the benefit sought on appeal remains denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case and provided the opportunity to respond thereto.

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).



_________________________________________________
BARBARA B. COPELAND
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).