Citation Nr: 1340076 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 09-46 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Lauren Murphy, Agent WITNESSES AT HEARING ON APPEAL Veteran and his goddaughter ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to January 1952. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This matter was previously before the Board in October 2012 and remanded for a Board hearing. In April 2013, the Veteran underwent a Board hearing, via videoconference. A copy of a transcript of that hearing is associated with the claims file. In May 2013, the Board remanded this matter again for additional development. This appeal was processed using the Virtual VA paperless claims processing system, including the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of whether the RO's April 1952 rating decision contained clear and unmistakable error has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See Statement from Accredited Representative, dated October 2012 (10/22/2012 Third Party Correspondence in VBMS). Therefore, the Board does not have jurisdiction over the matter, and it is referred 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 regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he was physically sound at the time of his entry into service and that his current left knee disorder developed due to an in-service basketball injury. The development directed by the Board in its last remand was not accomplished. The law mandates 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. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in May 2013 the Board directed the RO/AMC to attempt to obtain records from Livermore and Walnut Creek VA medical facilities (for the February 1976 left knee surgery), as well as any California VA medical records from the mid-1950s. Although the RO/AMC obtained verifications of no records from the Livermore VA medical center and Martinez VA outpatient clinic, the RO/AMC did not obtain any such verification or records from Walnut Creek. As such, those records should be obtained and associated with the claims file. Additionally, the Board notes that the AMC sent the September 2013 supplemental statement of the case (SSOC) to the Veteran's prior address. The US Postal Service (USPS) returned the SSOC to VA later in September 2013, noting that the forwarding time had expired and that the document would be returned to sender. Although the USPS noted a new address, it is unclear whether that address is the Veteran's current address. Indeed, the Board notes that the address listed by the USPS matches an address that the Veteran had used several years prior to providing the address that VA currently has on file. (VBMS record - 02/26/2007 VA 21-22 Appointment of Veterans Serv. Org. as Claimant Rep). As such, the Veteran did not receive his September SSOC. The Veteran also never informed VA of his new address. However, the AMC also mailed the SSOC to the wrong representative - it copied the SSOC to the Veteran's former representative the Disabled American Veterans (DAV), rather than his current agent, Lauren Murphy (VBMS record - 04/29/2011 VA 21-22 Appointment of Veterans Serv. Org. as Claimant Rep). As such, the Veteran cannot be deemed to have received notification of the SSOC through his representative. The RO/AMC should verify the Veteran's current address and provide a copy of the September 2013 SSOC to the Veteran at the correct address and to his agent. The Board further notes that in a July 2009 Report of Contact (VBMS record - 07/14/2009 VA 119 Report of Contact) the Veteran reported that he received Social Security Administration (SSA) benefits. SSA records are not associated with the claims file and should be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). Finally, the Board notes that the Veteran's April 20, 2009 notice letter provided notice as to why the Veteran's claim was previously denied, consistent with Kent v. Nicholson, 20 Vet. App. 1 (2006). However, that letter did not sufficiently comply with all Veterans Claims Assistance Act of 2000 (VCAA) notice requirements. The letter did not provide general VCAA notice for the underlying service connection claim or provide notice consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As such, the RO/AMC should provide notice consistent with VCAA requirements. 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. The RO/AMC should contact the Veteran's agent and verify his correct address. Subsequently, the RO/AMC should provide a copy of the September 2013 SSOC to the Veteran and his agent. 2. The RO/AMC should provide the Veteran correct VCAA notice, including notice for the underlying service connection claim and notice consistent with Dingess/Hartman v. Nicholson. The RO/AMC should also provide the Veteran with notice as to why his claim was previously denied again. 3. The RO/AMC should contact the SSA and obtain any administrative decisions and all medical records used in adjudicating any award of disability benefits. The RO/AMC should also contact the Walnut Creek VA medical center to obtain VA medical records, including those from the 1976 left knee operation. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, the RO/AMC should 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). 4. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of the additional evidence. If the benefit sought is not granted, the RO/AMC should furnish the Veteran another supplemental statement of the case and a reasonable opportunity to respond before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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).