Citation Nr: 1325457 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 09-42 266A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for residuals of a left ankle injury. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right ankle disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from August 1978 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Baltimore, Maryland. In July 2011, the Veteran testified at a personal hearing over which the undersigned Veterans Law Judge presided at the Board's main office in Washington, DC. A transcript of that hearing has been associated with his claims file. This matter was previously before the Board in October 2011 at which time it was remanded for additional development. It is now returned to the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 This matter was previously before the Board in October 2011. At that time, the Board directed the agency of original jurisdiction to contact the Mercy Medical Center, 301 Saint Paul Place, Baltimore, Maryland 21202, and request all medical records regarding any DOT physical examination performed on the Veteran, to specifically include records of a November 2007 DOT examination. The Board also indicated that if any records are unavailable, a memorandum detailing all efforts to obtain them be placed in the claims file. A review of the Veteran's claims file following the Board's October 2011 remand shows that in an October 2011 letter, the AMC noted the DOT treatment and asked the Veteran to complete a VA Form 21-4142 for each non-VA provider if he would like to have such treatment records obtained. The Veteran did not provide the AMC with a completed VA Form 21-4142, however, a memorandum detailing all efforts to obtain such records has not been associated with the Veteran's claims file. The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance; in such situations the Board must again remand the case for compliance with the remand orders. As indicated above, the Board finds that the AMC did not adequately comply with the terms of the October 2011 remand. Id. Accordingly, the case is REMANDED for the following action: 1. After obtaining the necessary authorization from the Veteran, the RO/AMC shall contact the Mercy Medical Center, 301 Saint Paul Place, Baltimore, Maryland 21202, and request all medical records regarding any Department of Transportation (DOT) physical examination performed on the Veteran to specifically include records of a November 2007 DOT examination. The RO/AMC shall also directly request copies of any DOT physical examination reports of the Veteran from the appropriate government agency. Efforts to obtain the records must continue until they are obtained, or it is reasonably certain that they do not exist or that further efforts would be futile. If any records are unavailable, a memorandum detailing all efforts to obtain them must be placed in the claims file. 2. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The Veteran 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. Claims remanded by the Board or the Court 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). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).