Citation Nr: 1323882 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 07-12 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for residuals of excision of a left foot neuroma prior to November 17, 2010, and in excess of 20 percent thereafter, to include on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, his spouse, J.R. and B.G. ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from January 1983 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision issued by the Denver, Colorado RO (Denver RO). The Veteran initially filed for service connection for residuals of excision of a left foot neuroma in July 2005 prior to being discharged from service. In the January 2006 rating decision, the Veteran was service connected for residuals of excision of a left foot neuroma and was assigned an initial 10 percent disability rating, effective September 1, 2005, - the day after his discharge from service. The Veteran has appealed the assignment of the initial 10 percent rating for residuals of excision of a left foot neuroma. Subsequently, the Veteran moved to Alabama and the claim was later transferred to the jurisdiction of the Montgomery, Alabama RO (Montgomery RO). Because the Veteran has disagreed with the initial rating assigned following the grant of service connection, the Board has characterized the issue in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). The Veteran and his witnesses testified at a Travel Board hearing before an Acting Veterans Law Judge in February 2010 at the Montgomery RO; a transcript of that hearing is associated with the claims file. That Acting Veterans Law Judge has since retired from the Board. The Veteran was offered the opportunity to testify at another hearing with a Veterans Law Judge who would decide his appeal, but he declined. In May 2010 this matter was last before the Board, at which time it was remanded for further development. In an April 2011 Supplemental Statement of the Case (SSOC) the RO increased the evaluation of the disability involved in the present appeal from 10 percent to 20 percent disabling, effective November 17, 2010. Because the maximum benefit was not granted, the issue of entitlement to a higher evaluation remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 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 When this matter was last before the Board it was remanded to attempt to obtain outstanding medical records for treatment and evaluation of the Veteran from the Air Force Academy in Colorado Springs, Colorado dated from July 2008. In June and August 2010 requests, the Appeals Management Center (AMC) attempted to obtain these records, but received no response to its requests. Notably, the AMC's requests appear to have been returned as undeliverable. The Veteran, however, was able to obtain some records from the Air Force Academy, but they do not appear to be a complete set of documents encompassing the Board's remand directives. VA has a duty to make as many requests as necessary to obtain records in the custody of a Federal department or agency unless concluding they do not exist or that further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). Accordingly, this matter must be remanded to attempt to obtain medical records from the Air Force Academy in Colorado springs. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any outstanding medical records for treatment and evaluation of the Veteran from the Air Force Academy in Colorado Springs, since July 2008. If necessary, the AMC/RO is directed to contact the Air Force Academy by phone or e-mail to obtain the proper address for requesting these records. All contacts with the Air Force Academy, as well as any records and responses received, should be associated with the claims file. A negative response is required if any such records are unavailable. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. The Veteran should also be informed that he can submit alternate evidence to supplement the available service treatment records. See M21-1MR, Part III, Subpart iii, Chapter 2, Section E.27.b. 2. After the development directed in paragraph 1 has been completed to the extent possible, and after conducting any indicated additional development, review the record and readjudicate the Veteran's claim, including on an extraschedular basis. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto before this case is 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). _________________________________________________ S. S. TOTH 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).