Citation Nr: 1326396 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 06-01 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for multiple nevi. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from September 1966 to April 1970 and from November 1971 to August 1972 with additional service in the Reserves. He had confirmed service in the Republic of Vietnam from November 1967 to November 1968. His awards and decorations include the Purple Heart. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from May 2005 and September 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In the May 2005 rating decision, the RO denied the Veteran's claims of service connection for a lumbar spine and a bilateral knee disorder. In the September 2006 rating decision, the RO denied the Veteran's claim of service connection for multiple nevis. In January 2008, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In March 2008, the Board remanded the issues on appeal for further development. In June 2010, the Board denied the claims of service connection for a lumbar spine disorder, a bilateral knee disorder, and multiple nevis. Subsequent to the June 2010 decision, the Veteran submitted an appeal to the United States Court of Appeals for Veterans Claims (Court). In February 2011, the Court issued an Order granting a Joint Motion to vacate the Board's decision on the claims decided in the June 2010 Board decision and remanded the issues to the Board for further development. In May 2011, the Board remanded the issues on appeal for further development. As will be discussed below, the Board must remand the issues again because the claims file does not reflect substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's case. A review of the documents in the paperless claims files reveals documents that are either duplicative of the evidence in the paper claims file or irrelevant to the issue 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claims. See 38 C.F.R. § 19.9 (2012). A review of the record shows that some of the prior directives from the May 2011 were not completed. A remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders. Stegall, 11 Vet. App. at 271. As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. In the February 2011 Joint Motion, the parties directed the Board to obtain service treatment records and service personnel records from his periods of active duty and Reserves service from November 1971 to November 1974. The parties noted that the Veteran's DD-214 noted that he was transferred to Headquarters and Headquarters Company (HHC), 78th Division Training, an Army Reserve training unit upon completion of a course at the Armor School, "indicating that [the Veteran's service treatment records] from his second period of active duty service may be in the possession of that unit." See JMR, p. 3. The parties indicated that there was no indication of record that VA contacted the Armor School or the 78th Division to obtain or otherwise account for the outstanding records. In the May 2011 remand, the Board directed the RO to "take all steps necessary to obtain the Veteran's service treatment records and service personnel records" from his period of service from November 1971 to November 1974. The RO was directed to contact the Armor School and HHC 78th Division Training to attempt to obtain the records. In the remand directives, the Board stated, "If any records could not be obtained the RO must document all steps taken and issue a Memo of Unavailability. All records and responses received should be associated with the claims file." In May 2011, the AMC submitted a Personnel Information Exchange System (PIES) request for the Veteran's complete service treatment records and his entire personnel file. Additionally, in May 2011, the AMC notified the Veteran that more information was required regarding the Armor School that he attended during service, including the address and/or phone number of a point of contact, and the address and/or phone number of a point of contact at the HHC 78th Division Training. A June 2011 PIES response indicated that all available service treatment records and service personnel records had been mailed to the RO. In June 2012, the AMC mailed a records request to the HHC 78th Division Training at Kilmer United States Army Reserve (USAR) Center in Edison, New Jersey. The mail was returned as undeliverable later that month. In a June 2013 supplemental statement of the case (SSOC), the RO noted that although it did not receive a response from the HHC 78th Division, "the request was considered moot as all records were then received from the National Archives." The evidence section of the SSOC stated that the RO received additional service treatment records (as a result of the May 2011 PIES request), "which includes reservist records, dated October 1966 through February 1985 and all evidence therein." However, the Board's review of the service treatment notes associated with the record in June 2011 shows duplicative records, dated from January 1966 to March 1970. While the service personnel records were not duplicative of records already associated with the record, service treatment notes dated from November 1971 to November 1974 were not included among the records mailed to the RO. Therefore, a remand is necessary to comply with the May 2011 remand directives. Stegall, 11 Vet. App. at 271. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should take all necessary steps to obtain copies of the Veteran's service treatment records and service personnel records from his active duty and Reserves periods of active duty and Reserves service from November 1971 to November 1974. The RO/AMC must contact the Armor School that the Veteran attended prior to transferring to HHC 78th Division Training. The RO/AMC must also contact HHC 78th Division Training. The RO/AMC must document all steps taken to obtain the records. If the records cannot be obtained, the RO/AMC must note such in the claims file. All records and responses received must be associated with the claims file. 2. The RO/AMC should review the claims file to ensure that all of the foregoing requested development is completed, and, thereafter, arrange for any additional development. 3. The RO/AMC should then readjudicate the claims remaining on appeal. If any benefit sought on appeal remains denied, the RO/AMC should issue an SSOC and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ CHERYL L. MASON 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).