Citation Nr: 1341102 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 08-23 103A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a left knee disability, to include residuals of anterior cruciate ligament repair. 2. Entitlement to an initial rating in excess of 10 percent for mild hallux valgus and hammer toes of the right foot. 3. Entitlement to an initial rating in excess of 10 percent for mild hallux valgus and hammer toes of the left foot. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from June 1995 to November 2005. These matters came before the Board of Veterans' Appeals (Board) on appeal from May 2006 and March 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefits sought on appeal. The Board remanded the claims for additional development in May 2011 and April 2013. While on appeal, in a rating decision in July 2013, the Agency of Original Jurisdiction (AOJ) granted a separate 10 percent rating for left knee instability. The Veteran has not disagreed with that decision and it is not presently before the Board. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Any future consideration of the Veteran's case should take into consideration the existence of this electronic record. Unfortunately, the appeal is again REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the issues on appeal can be properly adjudicated. Upon review of the claims file, the Board finds that the development directed by the Board in prior remands was not accomplished. Where the remand orders of the Board 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). In the prior April 2013 remand, the Board directed the AOJ to obtain additional VA treatment records. Specifically, the Board instructed the AOJ to inquire determine whether the Veteran had obtained treatment for his left knee and feet from the Durham VA Medical Center (VAMC) and Salisbury VAMC, and if so, obtain relevant treatment records dating since August 2008. It was further noted that if an inquiry to those facilities revealed no relevant treatment records, the claims file should be annotated to reflect such. A review of the Veteran's Virtual VA and VBMS electronic record fails to show that the requested development was completed as directed in the prior remand. Additionally, in April 2013, the Board remanded the claims in part to schedule the Veteran for a VA joints examination, as well as a VA feet examination, to be performed by a physician. While the Veteran underwent the requested VA examinations in May 2013, he was examined by a certified physician assistant, and there is no indication that the examination reports were reviewed and approved by a physician. Because the Board specified that the Veteran be examined by a physician, or in the alternative, that a physician review and approve the examination reports, remand for compliance is needed. Accordingly, the case is REMANDED for the following action: 1. Determine whether the Veteran has obtained treatment for his left knee and feet from the Durham VAMC and Salisbury VAMC, to include associated clinics. If so, obtain relevant treatment records dating since August 2008. If an inquiry to those facilities reveals there are no relevant treatment records, the claims file must be annotated to reflect such and the Veteran must be notified of such. 2. As the May 2013 VA foot and joint examinations were not performed by a physician as previously requested by the Board, please return those examinations to the VA Medical Center and request that these examinations be reviewed and approved by a physician, following claims file review by the physician. If the physician determines the examinations cannot be approved as adequate, then new examinations should be scheduled. 3. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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. 2013). ______________________________________________ K.A. BANFIELD 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).