Citation Nr: 1336558 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 08-33 298 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a tendon disorder of the left foot, to include a left ankle disorder. 2. Entitlement to service connection for a right knee disorder, to include as secondary to the left foot/ankle disorder. (The issue of entitlement to service connection for bilateral hearing loss is addressed in a separate decision.) REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to August 1967. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2007 rating decision in which the RO denied entitlement to service connection for bilateral hearing loss, a right knee condition, and a left foot tendon condition. In June 2008, the Veteran filed a notice of disagreement (NOD) as to the denial of his service connection claims. A statement of the case (SOC) was issued in October 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2008. In March 2010, the Veteran testified during a hearing before a Veterans Law Judge (not the undersigned) at the RO; a transcript of that hearing is of record. In February 2013, the Veteran was notified that the Veterans Law Judge (VLJ) who conducted his March 2010 hearing is no longer employed by the Board and, as a result, he was offered the opportunity for a hearing before a current VLJ who would participate in the decision in his appeal, in accordance with 38 C.F.R. §§ 20.707 and 20.717. The Veteran was informed that, if he did not respond within 30 days of the date of the letter, the Board would assume that he does not want another hearing and proceed with his appeal. To date, the Veteran has not requested an additional hearing in conjunction with this appeal. As such, the Board finds that all due process has been afforded the Veteran with respect to his right to a hearing. In March 2011, the Board denied the Veteran's claims for service connection for a right knee and left foot/ankle disorder. The Veteran appealed the March 2011 Board decision to the Court. In October 2012, the Court issued a Memorandum Decision, vacating the Board's decision that addressed the claims for service connection for a right knee and left foot/ankle disorder, and remanding the claims to the Board for adjudication consistent with the Court's decision. The Board notes that, while the Veteran previously was represented by the American Legion, in February 2013, the Veteran granted a power-of-attorney in favor of a private attorney, Daniel G. Krasnegor, with regard to only the claims for service connection for a right knee and left foot/ankle disorder. The Veteran's current attorney has submitted written argument on his behalf, and the Board has recognized the change in representation. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. The Veteran's Virtual VA electronic claims folder was reviewed in connection with the matters herein decided. The Veteran has submitted additional medical evidence directly to the Board, without a waiver of initial RO consideration of the evidence. See 38 C.F.R. § 20.1304 (2012). For reasons discussed below, the claims on appeal are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further RO action on the claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. In March 2013, the Veteran, through his attorney-representative, submitted additional evidence and argument in support of the claims on appeal. The Veteran did not submit a waiver of his right to have this evidence considered by the agency of original jurisdiction (AOJ) in the first instance. See 38 C.F.R. § 20.1304(c). As a result, this appeal must be remanded to the RO-which is the AOJ in this case-for consideration of the additional evidence received, and for issuance of a supplemental statement of the case reflecting such consideration. In support of his claim, the Veteran submitted an October 2013 statement from Dr. C.O., which purports to relate the Veteran's current left foot and right knee disabilities to his military service. While the October 2013 statement from Dr. C.O. is considered competent medical evidence, the Board finds that additional evidence is needed from Dr. C.O. in order to render a fully informed decision. In this regard, Dr. C.O. stated that the Veteran had a diagnosis of Achilles calcific tendonitis of the left foot and ankle, as well as post traumatic arthritis of the right knee. Dr. C.O. stated that the Veteran was seen in his office in January 2010, September 2013, and October 2013 and that x-rays were conducted of the Veteran's left foot and right ankle. Dr. C.O. did not, however, provide any records of treatment, including the x-ray reports, and the Board finds that such evidence is relevant to the claims on appeal, as such treatment is the basis of Dr. C.O.'s opinion. The Veteran has reported that he has received treatment for his ankle and knee from Dr. C.O. for over thirty years and Dr. C.O. has also stated that the Veteran has consistently complained of pain and favored his left foot and ankle since service. See September 2013 statement from Veteran; October 2013 statement from Dr. C.O. As such, it is likely that Dr. C.O.'s treatment records contain information relevant to this claim. Based on the foregoing, the Board finds that, on remand, the RO should attempt to obtain all records of treatment from Dr. C.O. The Board also notes that there may be outstanding VA treatment records that are relevant to this claim. The evidentiary record contains a VA outpatient treatment record dated June 2006, which is the first post-service medical evidence of a left foot disorder. There are no treatment records dated prior to June 2006 associated with the record, but the June 2006 treatment record reflects that the Veteran had active medications and had been seen previously at this location - the Corpus Christi, Texas outpatient clinic. The June 2006 treatment record also reflects that the Veteran was to be scheduled an x-ray of the left foot and ankle in the following two weeks and referred to the podiatry clinic. However, there are no other subsequent VA treatment records until January 2007, which was provided at the VA Medical Center (VAMC) in Jackson, Mississippi. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the RO must obtain all outstanding, pertinent records of VA treatment of the Veteran, to include from the Corpus Christi outpatient clinic and the Jackson, Mississippi, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to a request for records from Federal facilities. The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the increased rating claims on appeal. The RO's adjudication of each claim should include consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), is appropriate. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records from the Corpus Christi, Texas outpatient clinic and the Jackson, Mississippi VA Medical Center and associate them with the claims file. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Ask the Veteran to identify (and provide authorizations for VA to secure records of) any private evaluations and/or treatment he has received, particularly from Dr. C.O., whose most recent address in the record is 1301 Veterans Memorial Blvd, Eupora, MS 39744. Complete records of all such evaluations/treatment must be secured for the record. Any negative replies must be documented in the record. 3. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence and legal authority. 5. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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. 2012). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).