Citation Nr: 1335524 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-32 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 10 percent for right knee chondromalacia of the patella. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from December 1999 to May 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, granted the Veteran's claim for service connection for right knee chondromalacia patella and assigned an initial 10 percent rating. The Veteran failed to appear for a hearing scheduled in July 2008. Her request for a hearing is therefore deemed to be withdrawn. See 38 C.F.R. § 20.704(d) (2012). In May 2011 and April 2012, the Board remanded the instant matter to the Appeals Management Center (AMC) for additional development and adjudication. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veterans claim. A review of the Virtual VA claims processing system reveals VA treatment records from the VA Medical Center in Gainesville, Florida, dated through October 2012; such records were considered in the August 2012 supplemental statement of the case (SSOC). Finally, the Board notes that a May 2012 VA examiner opined that mild osteoarthritis in both of the Veteran's knees was at least as likely as not caused by or a result of service. While the instant claim for an increased rating for the Veteran's right knee would encompass all manifestations, including osteoarthritis, service connection for a left knee disorder has not been granted and is not on appeal. Therefore, the inferred issue of entitlement to service connection for a left knee disorder is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Board is cognizant of the fact that the Veteran's case has already been remanded in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding this claim again unless it was essential for a full and fair adjudication of her claim. In its April 2012 remand, the Board directed that the Veteran's VA outpatient treatment records from the Tampa, Florida VA Medical Center (VAMC) dated since June 2008 were to be associated with the Veteran's claims file. An April 2012 administrative notation in the Veteran's claims file indicates that the Veteran's Tampa VAMC treatment records dated through September 2011 had been associated with her Virtual VA claims file and that records dated after September 2011 could not be printed as the required computer program was "down." In addition, an August 2012 SSOC indicates that the Veteran's outpatient treatment records from the Tampa VAMC dated from June 2008 to August 2012 had been considered in rendering the decision. However, a review of the Veteran's Virtual VA file as well as her physical claims file by the Board is negative for such records. 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. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall, the Court of Appeals for Veteran's Claims held that "where ... the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. In light of the deficiency detailed above, this matter must be remanded to ensure compliance with the Board's previous remand. Accordingly, the case is REMANDED for the following action: 1. Associate the Veteran's updated VA treatment records from the Tampa VAMC, including any records dated from June 2008 to April 2012, with her claims file. Any response received in association with this request should be memorialized in the Veteran's claims file. All efforts to obtain these records should be documented in the claims file. If these records are unavailable, this should be documented in the claims file and the Veteran should be so informed. 2. If any benefit sought on appeal remains denied, issue a supplemental statement of the case, before the claims file is returned to the Board, if otherwise in order. 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). 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). _________________________________________________ MARJORIE A. AUER 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).