Citation Nr: 1418050 Decision Date: 04/22/14 Archive Date: 05/02/14 DOCKET NO. 09-48 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Evaluation of patellofemoral syndrome of the right knee, currently noncompensable. 2. Evaluation of patellofemoral syndrome of the left knee, currently noncompensable. 3. Evaluation of degenerative joint disease of the thoracolumbar spine, currently noncompensable. 4. Evaluation of status-post superior labral anteroposterior injury of the right shoulder, with degenerative changes, currently noncompensable. 5. Entitlement to service connection for a cervical spine disorder with bilateral arm numbness. 6. Entitlement to service connection for Ehlers-Danos syndrome, to include polyarthropathies of the knees, hips, and ankles. 7. Entitlement to service connection for a heart disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from August 2001 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the RO. In her Substantive Appeal (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge (VLJ) at the RO (Travel Board). In January 2010, she clarified that she wanted a video-conference hearing with a VLJ or in the alternative, a Travel Board hearing. She was scheduled for a Travel Board hearing on March 19, 2013. She failed to report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, her hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2013). The Virtual VA claims file has been reviewed. Documents in that file and in the Veterans Benefits Management System are duplicative of the evidence in the paper claims file or irrelevant to the issues on appeal. This case was previously remanded by the Board in October 2013 wherein it was remanded for additional development, including additional VA examinations. As will be discussed below, the Veteran was scheduled for the VA examinations, but failed to report. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders). The Veteran's claims have been returned to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board observes that, following the Board's October 2013 remand, the RO scheduled the Veteran for VA examinations pursuant to the Board's remand, and the Veteran failed to report as scheduled. As such, the Veteran's claims will be considered in light of the evidence of record. In this regard, the Board observes that the RO obtained the Veteran's VA treatment records for the period from January 2009 to February 2014; these records were considered by the RO in the first instance in the February 2014 supplemental statement of the case (SSOC). See 38 C.F.R. § 20.1304(c). However, although the RO associated a listing of all of the Veteran's appointments for treatment at the VA Medical Center during that period, the actual treatment reports have not been associated with the Veteran's papers claim file or her electronic claims files in Virtual VA or the Veterans Benefits Management System. Although the RO, in the February 2014 SSOC, determined that these records did not show that the claimed Ehlers-Danos syndrome, cervical spine disorder, and heart disorder are etiologically related to service, or that the service-connected disabilities increased in severity, the Board must make its own determination as to relevance. The only means of determining whether the records are relevant is to obtain and review the records. See Golz v. Shinseki, 590 F.3d 1317, 1321 (2010). VA records are considered to be constructively of record and VA is charged with knowledge of their contents. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file the Veteran's VA treatment records from any VA facility identified by the Veteran or in the record, for the period since January 2009. 2. After completing all indicated development, the RO should readjudicate the claims in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish a fully responsive SSOC to the Veteran and his representative and afford them a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant 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. 2013). _________________________________________________ H. N. SCHWARTZ 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).