Citation Nr: 1327613 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 05-25 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for status post lumbar strain with multilevel degenerative disc disease. 2. Entitlement to an initial compensable rating for status post right shoulder partial rotator cuff tear prior to January 12, 2012; and higher than 10 percent for the period beginning January 12, 2012. 3. Entitlement to an initial rating higher than 10 percent for status post left knee strain with degenerative changes. 4. Entitlement to an initial rating higher than 10 percent for status post right knee strain with residual pain. 5. Entitlement to an initial rating higher than 10 percent for hallux valgus, left foot, status post fracture of the 3rd and 4th metatarsal and sesamoidectomy. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran served on active duty from September 1996 to November 2003. This matter comes before the Board of Veterans' Appeals (Board) from an August 2004 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO granted service connection for status-post lumbar strain with multilevel degenerative disc disease, evaluated as 10 percent disabling; status-post right shoulder partial rotator cuff tear, evaluated as noncompensable ;status post left knee strain with degenerative change by X-ray, evaluated as noncompensable; status post right knee strain with residual pain, evaluated as noncompensable; for hallux valgus, left foot, status post fracture of the 3rd and 4th metatarsal, evaluated noncompensable; and for residuals of a sesamoidectomy evaluated as noncompensable disability rating; all effective December 1, 2003. In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO (Travel Board). In July 2005, he indicated that he wanted a hearing at the RO before a Hearing Officer. In December 2005, the Veteran testified at a hearing before a Decision Review Officer (DRO hearing) at the RO; the transcript of this hearing has been associated with the record. The Veteran was scheduled for a Travel Board hearing in March 2009. He responded in February 2009 that he would not be able to attend, because he was employed as a contractor in Iraq. He reported that he was unable to give a timeframe when he would be able to attend the hearing, but that he wished to contact VA when he could provide available dates. The RO scheduled another Travel Board hearing in August 2011. He did not report to the scheduled hearing. He was sent a letter in late August 2011 which explained that his case was certified to the Board and that his claims file was being transferred to Washington, D.C. The letter informed the Veteran that, within 90 days of the letter, he could ask to appear at a hearing before the Board to provide testimony about his case. The Veteran did not respond to the letter, and has not provided VA with any additional information regarding when he could report for a hearing. As such, his request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(e) (2012). In October 2008, the DRO increased the rating for status post left knee strain with degenerative change by X-ray to 10 percent, status post right knee strain with residual pain to 10 percent, and hallux valgus, left foot, status post fracture of the 3rd and 4th metatarsal and sesamoidectomy to 10 percent, all effective December 1, 2003. In November 2011, the Board denied a claim for a compensable initial rating for a residual scar. The remaining issues were remanded for further development. A September 2012 rating decision issued by the Appeals Management Center (AMC) increased the initial rating for the right shoulder disability to 10 percent, effective January 12, 2012. In December 2012, the Board remanded these issues for further development, to include the completion of development that was first requested in November 2011. The Board has reviewed the electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. The issue of entitlement to an increased rating for the Veteran's sesamoidectomy scar has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Regrettably, this appeal must once again be REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required. REMAND The December 2012 remand instructed that the records of the Veteran's March 2011 visit to his VA primary care provider noted in a January 2012 VA examination report should be obtained and associated with the claims folder. The AMC requested VA treatment in February 2013. The request noted that in particular the March 2011 records should be obtained. Additional VA treatment records were obtained, but not the March 2011 report. Efforts to obtain records in Federal custody must continue until they are obtained, unless it is reasonably certain they do not exist or further efforts would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Obtain the records of the March 2011 visit to the Veteran's VA primary care provider noted in the January 2012 VA examination reports. Efforts to obtain this record must continue until it is obtained, unless it is reasonably certain it does not exist or further efforts would be futile. If the record cannot be obtained, the Veteran should be so advised, told of the efforts made to obtain the records, and of any further actions that will be taken. 2. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Return the case to the Board, if otherwise in order. 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). 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. 2013). _________________________________________________ Mark D. Hindin 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).