Citation Nr: 1323794 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 04-35 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased rating for service-connected traumatic arthritis of the left knee, rated 10 percent prior to March 29, 2013, and 20 percent from March 29, 2013. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran had active military service from January 1976 to September 1991. This appeal to the Board of Veterans' Appeals (Board) initially arose from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In September 2005, the Veteran appeared before the undersigned Veterans Law Judge (VLJ) sitting in Detroit, Michigan, and delivered sworn testimony pertaining to the issue on appeal. A transcript of this hearing is associated with the claims file. In January 2006, the Board remanded the issue of entitlement to an evaluation in excess of 10 percent for traumatic arthritis of the left knee for further evidentiary development. The Board's January 2006 remand directives and the subsequent actions by the RO and VA Appeals Management Center (AMC) will be further discussed below. The Veteran's claim was returned to the Board. In a February 2009 decision, the Board denied the Veteran's claim for an increased evaluation. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2011 Memorandum Decision, the Court vacated the Board's February 2009 decision and remanded the case to the Board for further action consistent with the Court's decision. In December 2011 and January 2013, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. The Board's December 2011 and January 2013 remand directives and the subsequent actions by the RO and AMC will be further discussed below. In a May 2013 rating decision, the AMC increased the evaluation assigned for the Veteran's traumatic arthritis of the left knee from 10 percent to 20 percent, effective from March 29, 2013. As this increase does not represent a full grant of the benefits sought, the Veteran's appeal is not abrogated and the matter remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran's claim for an increased evaluation has been returned to the Board. As noted by the Board on four prior occasions, the issues of entitlement to service connection for right knee and back disabilities, as secondary to service-connected left knee disability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Although the claims file includes an April 2013 memorandum from an AMC employee noting that these issues should be developed and adjudicated by the RO, there is no indication that such actions have been undertaken. Therefore, the Board remains without jurisdiction over these issues and they are referred to the AOJ for appropriate actions. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, another remand is necessary so that VA may fulfill its duty to assist the Veteran in substantiating her claim for an increased evaluation. At the September 2005 hearing, the Veteran submitted a statement from Dr. Vallance, a private clinician. In this statement, dated in October 2003, Dr. Vallance asserted that he had treated the Veteran for symptoms pertaining to her service-connected left knee disability, among other ailments, on several occasions since October 2002. Noting that this statement indicated the existence of outstanding evidence pertinent to the Veteran's claim, in the January 2006 remand, the Board instructed the RO/AMC to provide the Veteran with a VA Form 21-4142 and instructions to complete and submit such, so that VA may obtain this evidence. While the Veteran did not respond to this initial request, the Board concludes that, in light of the forthcoming changes to the 38 U.S.C.A. § 5103A(2)(B), the RO/AMC must make further attempts to obtain a completed release so that these identified and pertinent private treatment records from Dr. Vallance may be obtained. After the Veteran submits a completed release for these records, the RO/AMC must make two attempts for the relevant private treatment records or make a formal finding that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). As these claims must be remanded for other matters, the Board concludes that the RO/AMC should obtain updated VA treatment records from the VA Medical Center (VAMC) in Ann Arbor, Michigan, and associate them with the record. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that she complete and submit to VA a provided VA Form 21- 4142, Authorization and Consent to Release Information, for all records of private treatment from Dr. Vallance in Ann Arbor, Michigan. After receiving the completed release, undertake all appropriate efforts to attempt to obtain these identified records. In light of the forthcoming changes to the 38 U.S.C.A. § 5103A(2)(B), the RO/AMC must make two attempts for the relevant private treatment records or make a formal findings that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts with respect to this directive should be associated with the claims file. 2. Obtain and associate with the record all outstanding VA treatment records from the VAMC in Ann Arbor, Michigan, dated from October 9, 2012, to the present. 3. Thereafter, conduct any other development which reasonably flows from the above instructions, to include scheduling the Veteran for another VA examination in connection with her claim if the contemporaneous medical evidence reflects that her service-connected left knee disability has increased in severity since March 2013. 4. Thereafter, readjudicate the Veteran's claim with application of all appropriate laws and regulations, and consideration of all of the evidence of record. If the claim is not granted to the fullest extent, the Veteran and her representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter 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).