Citation Nr: 1338346 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 10-07 492 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Jewish War Veterans of the United States ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from December 1963 to December 1964. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2008 rating decision in which the RO denied service connection for a right knee disability. In December 2008, the Veteran filed a notice of disagreement (NOD) to this denial. The RO issued a statement of the case (SOC) in December 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2010. In his February 2010 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. The Veteran received notice of the hearing, scheduled for August 2011. Four days prior to the hearing, the Veteran contacted the Board to request that his hearing be rescheduled. A March 2012 letter informed the Veteran that his hearing was rescheduled for May 2012. Although the hearing notice was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to appear, and has neither provided good cause for failing to appear, nor requested a rescheduling of the hearing. Under these circumstances, the request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704 (d) (2013). In July 2012, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After attempting to accomplish the requested action (an attempt to obtain any outstanding service treatment records (STRS)), the AMC continued to deny the claim for service connection (as reflected in a September 2013 supplemental SOC (SSOC)), and returned this matter to the Board for further appellate consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. For the reasons expressed below, the matters on appeal are, again, being remanded to the RO, via the AMC. VA will notify the appellant when further action, on his part, is required. REMAND Unfortunately the Board finds that further RO action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. Initially, in the July 2012 Remand, the Board, among other things, instructed the RO/AMC to obtain any outstanding mental hygiene records associated with the Veteran's May 1964 mental hygiene evaluation (directive 3). An August 2013 deferred rating decision notes that the July 2012 Remand specifically requested that the AMC obtain from the appropriate source(s) any outstanding mental hygiene records associated with the Veteran's May 1964 mental hygiene evaluation. It was noted that on April 25, 2013, the developed requested May 1964 mental hygiene evaluation at Fort Gordon only, for which the AMC received a negative response on June 21, 2013. The deferred rating decision includes a request that directive 3 cited in the July 2012 remand be completed, specifically conducting a search for any outstanding mental hygiene records associated with the Veteran's May 1964 mental hygiene evaluation, per remand request. Unfortunately, it does not appear that this development was ever accomplished. Notably, in the July 2012 Remand, the Board referred only to records dated from December 1963 through March 1964 at Fort Dix, New Jersey, and records from March through April 1964 at Fort Gordon, Georgia. However, it also appears that the Veteran served at Fort Bliss, Texas from approximately April 1964 through December 1964. While a June 2013 Personnel Information Exchange System (PIES) request was negative for outstanding records from both Fort Dix and Fort Gordon, no request made for records from Fort Bliss. As such, on remand, the RO/AMC should, again, request any outstanding STRs from all appropriate sources in consideration of the Veteran's service at Fort Dix, Fort Gordon, and Fort Bliss, to include mental hygiene records associated with the Veteran's May 1964 mental hygiene evaluation. Also, the Board notes that the RO most recently reviewed the claims file in a September 2013 SSOC. Subsequently, in October 2013 the Veteran submitted additional evidence. Specifically, the Veteran submitted an August 2013 statement from Dr. K.K. noted the Veteran's history of hyperextending his right leg during military service. Dr. K.K. wrote "In my professional opinion and with similar cases of this nature, it is my professional opinion that his knee joint has worn out prematurely the cartilage was damaged and now he has bone on bone degenerative in nature as a result of the hyperextended knee in the service." The Veteran also submitted a statement that VA had ignored the August 2013 statement from Dr. K.K. While, earlier in October 2013, the Veteran's representative filed a waiver of initial RO consideration of any new evidence, prior to the Veteran's submission of the above-noted additional evidence, the Board considers the Veteran's October 2013 statement that VA had ignored the August 2013 statement from Dr. K.K. as a request for RO review of the newly submitted evidence. Hence, as the Board is remanding the matter on appeal for other reasons, on remand the RO should consider the claim in light of the additional evidence received, in the first instance. On remand, to ensure that all due process requirements are met, and that the record is complete, the RO should also give the appellant another opportunity to present information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent outstanding, private records. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties 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 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA (to include arranging for the Veteran to undergo further examination or otherwise obtaining further medical opinion based on review of any additional evidence)prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Undertake appropriate action to obtain any outstanding clinical records pertaining to the Veteran's evaluation and treatment following a knee injury occurring between December 1963 and March 1964 at Fort Dix, New Jersey; as well as any outstanding clinical records pertaining to evaluation and/or treatment of the Veteran's knee between March and April 1964 at Fort Gordon, Georgia, and between May 1964 and December 1964-to include records associated with a May 1964 mental hygiene evaluation-at Fort Bliss. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Undertake appropriate action to obtain complete service personnel records for the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all pertinent, outstanding private records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. 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). 6. After completing the requested actions, and any additional notification and/or development deemed warranted (to include arranging for the Veteran to undergo further examination or otherwise obtaining further medical opinion based on review of any additional evidence), readjudicate the claim on appeal in light of pertinent evidence (to particularly include all evidence added to the claims file since the last adjudication of the claim) and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate 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. 2013). _________________________________________________ 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) (2013).