Citation Nr: 1320429	
Decision Date: 06/25/13    Archive Date: 07/05/13

DOCKET NO.  12-23 125	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an increased evaluation for total knee replacement, left knee, currently evaluated as 30 percent disabling.




REPRESENTATION

Appellant represented by:	Missouri Veterans Commission




ATTORNEY FOR THE BOARD

Suzie S. Gaston, Counsel



INTRODUCTION

The Veteran served on active duty from October 1961 to August 1963.  

This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a February 2011 rating decision, by the St. Louis, Missouri, Regional Office (RO), which recharacterized the Veteran's left knee disability as total replacement, left knee, and increased the evaluation from 10 percent to 30 percent.  The Veteran perfected a timely appeal to the rating assigned.  

In this case, recent VA medical records were added to the Veteran's electronic Virtual VA folder.  Because the current appeal includes records that are located only in the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a) (2) (West 2002).  

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, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C.A. § 5103A (a); 38 C.F.R. § 3.159(c), (d).  



The Board notes that, following the July 2012 Statement of the Case (SOC), medical records electronically available through the Compensation and Pension Records Interchange (CAPRI) that pertain to the issue on appeal were uploaded to the Virtual VA eFolder in May 2013.  VA regulations provide that, upon receipt of additional pertinent evidence after a Statement of the Case or the most recent Supplemental Statement of the Case has been issued and before the appeal is certified to the Board of Veterans' Appeals and the appellate record is transferred to the Board, the agency of original jurisdiction will furnish the Veteran and his representative a Supplemental Statement of the Case (SSOC).  See 38 C.F.R. § 19.31; see also 38 C.F.R. § 20.1304 (the Veteran may waive waiver of agency of original jurisdiction review of evidence submitted directly to the Board may be waived after a case has been certified to the Board).  Review of the record reveals that the Veteran was not issued a Supplemental Statement of the Case (SSOC) after VA medical records dating from September 2011 to February 2013 were added to Virtual VA in May 2013.  Accordingly, the case must be remanded pursuant to 38 C.F.R. § 19.31.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

The RO should review all evidence received since the SOC was issued in July 2012, to specifically include the evidence added to Virtual VA in May 2013, including the February 2013 VA examination, and readjudicate the Veteran's claim.  If the determination remains unfavorable to the Veteran, both he and his representative should be furnished an SSOC, which contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal.  An appropriate period of time should be allowed for response by the Veteran and his service representative.  Thereafter, the case should be returned to the Board for appellate 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).



_________________________________________________
J. A. MARKEY
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).