Citation Nr: 1328204 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 08-37 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a disorder of the left hand, to include lymphangitis, trigger finger, and osteoarthritis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty from March 1954 to February 1956. This case comes before the Board of Veterans' Appeals (Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which declined to reopen the Veteran's previously denied claim of service connection for a left hand disorder (then claimed as lymphangitis). The Board disagreed with the RO's finding that new and material evidence had not been received and subsequently issued a November 2010 decision reopening the Veteran's claim. However, rather than reaching a decision on the merits, the Board remanded that reopened claim for additional development by the agency of original jurisdiction (AOJ). Thereafter, the case was returned to the Board, which issued a May 2012 decision denying service connection for a left hand disorder, which now encompassed not only lymphangitis but also trigger finger and osteoarthritis. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), which promulgated a January 2013 Order granting the parties' Joint Motion for Remand. Since the issuance of that Court Order, the Board has requested Spanish-to-English translations of several private medical records, which were submitted by the Veteran in support of his claim. The requested translations have been completed and the case is once more before the Board for appellate review. The Board acknowledges that, following the issuance of the February 2012 supplemental statement of the case (SSOC), the Veteran sent additional documents directly to the Board for initial consideration. Significantly, those documents were not accompanied by a waiver of review by the AOJ. The Board recognizes that it is generally precluded from adjudicating appeals filed prior to February 2, 2013, in which pertinent evidence has been received without such a waiver. See generally 38 C.F.R. § 20.1304 (2012); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Moreover, while the Board previously determined that the new documents did not pertain to the claim at issue, the AOJ will now have an opportunity to review that information, as well as any additional evidence elicited pursuant to the Remand directives herein. As a final introductory matter, the Board observes that the Veteran appears to be seeking a total rating based upon individual unemployability (TDIU) due, in part to the above-captioned disability. However, as a claim of entitlement to TDIU has not been adjudicated in the first instance, the Board does not have jurisdiction to address that issue and must instead refer it to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Although the Board sincerely regrets the additional delay in this long-pending appeal, it is constrained by the fact that proper adjudication requires further development of the claim at issue. As noted in the introduction, the Board previously reopened and remanded the Veteran's claim in a decision dated in November 2010. At that time, the Board surmised that additional efforts were needed to obtain the Veteran's complete VA medical records for the periods from July 1981 to June 2003 and from May 2006 to May 2008. Pursuant to the Board's directive, the AOJ updated the Veteran's claims file with treatment reports from the San Juan VA Medical Center, dated from May 2001 to November 2010. However, as noted by the parties to the Joint Motion, the AOJ does not appear to have requested any VA medical records dated prior to May 2001, notwithstanding the Board's express observation that such records appeared to be outstanding. The parties to the Joint Motion agree that this case must be remanded in order to ensure that all potentially applicable VA treatment records are associated with the claims file. As such, the Board has no discretion but to remand this matter for compliance with the Court's January 2013 Order granting the parties' Joint Motion. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with a Court Order extends to the terms of the agreement struck by the parties that forms the basis of the Joint Motion to Remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (holding that the Board has a duty on remand to ensure compliance with the favorable terms stated in the Joint Motion or explain why the terms will not be fulfilled.) Specifically, on Remand, the AOJ should obtain and associate with the claims file all inpatient and outpatient treatment reports from the San Juan VA Medical Center dated from July 1981 to April 2001, inclusive. Moreover, to ensure that the record is complete for rating purposes, the AOJ should also obtain all treatment reports from the above VA medical facility generated since February 17, 2012 (the date of the most recent VA treatment reports associated with the Veteran's electronic Virtual VA file). See 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain and associate with the record (i.e., the paper claims file and/or the electronic Virtual VA file) all inpatient and outpatient treatment reports from the San Juan VA Medical Center dated from July 1981 to April 2001, inclusive, and from February 18, 2012, to the present. All reasonable attempts should be made to obtain the Veteran's outstanding VA records. If any records cannot be obtained after reasonable efforts have been exhausted, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After the above VA treatment reports have been obtained, and after completing any additional development needed to ensure that the record is complete for rating purposes, readjudicate the Veteran's claim for a disorder of the left hand, to include lymphangitis, trigger finger, and osteoarthritis. If any aspect of the decision remains adverse to the Veteran, issue a supplemental statement of the case, which expressly accounts for all the evidence obtained pursuant to this Remand. After allowing the appropriate time for response, return the case to the Board. 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this Remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim is both critical and appreciated. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or United States Court of Appeals for Veterans Claims for development or other action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ K. A. KENNERLY Acting 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).