Citation Nr: 1333534 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 08-13 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a foot disability. 2. Entitlement to an increased initial disability rating for right patellofemoral pain syndrome, evaluated as 10 percent disabling from September 4, 2005 to May 28, 2009, and as 20 percent disabling since May 29, 2009. 3. Entitlement to an increased initial disability rating for right knee instability, evaluated as 10 percent disabling since July 28, 2010. 4. Entitlement to an increased initial disability rating for residuals of a left hip injury, evaluated as 10 percent disabling since September 4, 2005. 5. Entitlement to an increased initial disability rating for psoriasis, evaluated as 10 percent disabling since September 4, 2005. 6. Entitlement to an increased initial disabling rating for gastroesophageal reflux disease (GERD), evaluated as 10 percent disabling since September 4, 2005. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from September 2001 to September 2005. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In January 2010, the Veteran testified at a hearing before the undersigned; a transcript of the hearing is of record. In May 2010, the Board remanded the claims for additional development. The case has since been returned to the Board for appellate review. Prior to returning the case to the Board, in an October 2011 rating decision, the Agency of Original Jurisdiction (AOJ) granted the Veteran's claims of entitlement to service connection for a left knee disability and for a right hip disability. The Veteran did not subsequently file a second notice of disagreement (NOD) disagreeing with either the schedular disability ratings or effective dates assigned by the AOJ. Thus, those issues are not presently before the Board. See 38 C.F.R. §§ 20.200, 20.201, 20.302 (2013); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (explaining that where a claim of service connection is granted during the pendency of an appeal, a second NOD must thereafter be timely filed to initiate appellate review concerning the compensation level or the effective date assigned for the disability). In addition, the October 2011 rating decision granted a higher rating for right patellofemoral pain syndrome from September 4, 2005 to May 28, 2009, a separate rating for right knee instability, a higher rating for psoriasis from September 4, 2005 to May 28, 2009, a higher rating for GERD from September 4, 2005, and a higher rating for residuals of a left hip injury (recharacterized as a left hip strain) from September 4, 2005. As each additional award does not represent a total grant of the benefits sought on appeal, the claims for increase disability ratings remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran's paper claims file and electronic folder have been reviewed in conjunction with the disposition of the issues on appeal. The appeal is REMANDED to the AOJ via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action, on his part, is required. REMAND Upon review, the Board finds that further development is necessary to ensure compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that, where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Specifically, further efforts should be undertaken to procure relevant treatment records and to schedule the Veteran for a VA examination to assess the current severity of his service-connected psoriasis. In May 2010, the Board remanded the claims, in part, to obtain any outstanding relevant treatment records. According to the October 2011 Supplemental Statement of the Case (SSOC), additional VA treatment records were electronically reviewed; however, these records have not been associated with the Veteran's claims file or electronic folder. Therefore, a remand is needed so that these records can be associated with the Veteran's electronic folder in Virtual VA or the Veterans Benefits Management System (VBMS). These records include records from the Coatesville VA Medical Center (VAMC) dated from September 2005 to September 2010, records from the Lebanon VAMC dated from January 2006 to April 2011, and records from the Philadelphia VAMC dated in January 2007. Since the Veteran receives ongoing treatment at VA, any outstanding records should also be obtained. The Board also directed the AOJ to attempt to obtain records from Bethesda Naval Hospital (Bethesda). A June 2007 VA outpatient treatment record reflects that the Veteran reported that he had magnetic resonance imaging (MRI) of his left knee at Bethesda. Although the Veteran's parents indicated in a May 2009 letter that treatment records from Bethesda had been lost, the AOJ had not attempted to assist the Veteran in obtaining these records. In May 2010, the AOJ requested the Veteran's treatment records from Bethesda. On the request form, the AOJ requested treatment records from June 2007 to the present; however, in the space below the form, the AOJ requested all medical records from 1983 to the present. The Board notes that the Veteran reportedly had an MRI prior to June 2007; hence, the request on the form would not have covered the relevant time period. Later that month, Bethesda responded that it showed no treatment for the dates of service requested. It is unclear, however, whether Bethesda searched its records from June 2007 to the present or from 1983 to the present. Therefore, a remand is needed to obtain clarification. The Board also remanded the claims to afford the Veteran with VA examinations to assess the current severity of his service-connected disabilities. Specific to the psoriasis, the Board directed the AOJ to schedule the Veteran for a VA dermatological examination during a period in which his skin condition was active, i.e., not during the months of summer or early fall. The record reflects that the requested examination was conducted during the summer in July 2010. Hence, a remand is needed so that the Veteran can be scheduled for another examination in accordance with the Board's remand directives. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate all of the Veteran's outstanding VA treatment records with his electronic folder in Virtual VA or VBMS. This must include the following records that were referenced in the October 2011 SSOC and electronically reviewed: 1) records from the Coatesville VAMC dated from September 2005 to September 2010; 2) records from the Lebanon VAMC dated from January 2006 to April 2011; and 3) records from the Philadelphia VAMC dated in January 2007. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e) . 2. After obtaining any needed assistance from the Veteran, issue a second request to Bethesda Naval Hospital for the Veteran's treatment records. Request all relevant treatment records dated from September 2001. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. After any additional records have been associated with the claims file, schedule the Veteran for a VA dermatology examination to determine the current severity of his service-connected psoriasis. The examination should be conducted during a period in which his skin condition is active; i.e., not during the months of summer or early fall. All indicated tests and studies are to be performed, and a comprehensive history is to be obtained. Prior to the examination, the claims folder, to include any pertinent records in the Veteran's electronic folder, and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner should set forth all examination findings, along with a complete rationale for any conclusions reached. The examination must be conducted following the protocol in VA's Skin Diseases (Other than Scars) Disability Examination Worksheet. The examination must respond to the instructions contained therein. 4. Thereafter, the AOJ must consider all of the evidence of record and readjudicate the Veteran's claims. In regard to the claims of entitlement to increased ratings, the AOJ must consider the propriety of "staged" ratings based on any changes in the degree of severity of the Veteran's service-connected disabilities. The Veteran and his representative must be provided an SSOC. The SSOC must contain notice of all relevant actions taken on the claims, to include a summary of the evidence and the law and regulations considered pertinent to the issues on appeal. An appropriate period of time should be allowed for response. Thereafter, if indicated, the case should be returned to the Board for appellate disposition. 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). The claims must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ S. C. KREMBS 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) (2013).