Citation Nr: 1602574 Decision Date: 01/27/16 Archive Date: 02/05/16 DOCKET NO. 13-05 964 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to an initial rating in excess of 10 percent for left knee medial collateral ligament strain. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Purcell, Associate Counsel INTRODUCTION The Veteran served in the Army National Guard of Texas with a period of active duty training (ACDUTRA) from January 24, 2009 to January 25, 2009. She is in receipt of service-connected compensation for disabilities incurred during this period of service. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2011 rating decision in which the RO, inter alia, awarded service connection for left knee medial collateral ligament strain and assigned an initial 10 percent rating, effective January 26, 2009. In August 2011, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in January 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2013. In July 2013, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO; a transcript of that hearing is of record. This matter was before the Board in February 2015, at which time it was remanded for further development. This appeal is now being processed utilizing the Veterans Benefits Management System (VBMS) and the Virtual VA paperless, electronic claims processing systems. For reasons expressed below, the claim on appeal is, again, being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on her part, is required. REMAND Although the Board regrets the additional delay, review of the claims file reveals that further AOJ action on the claim on appeal is warranted. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the February 2015 remand, the Board directed the AOJ to schedule the Veteran for a Decision Review Officer (DRO) hearing ; or, if the Veteran no longer desired a DRO hearing, to place a signed writing to that effect in the Veteran's claims file. The claims file does not reflect that a hearing was scheduled or that a signed hearing withdrawal was obtained. As such, the Board finds that there has not been substantial compliance with the Board's prior remand instructions, and that another remand of this matter for such action is required. See Stegall, supra. The Board further notes that the record reflects that a number of mailings to the Veteran were returned for an incorrect address. The Veteran filed a change of address statement in March 2015 which matches the forwarding address provided by the United States Postal Service on the Veteran's returned mail, processed November 2015. The AOJ should verify the Veteran's address, send a copy of all documents formerly mailed to an incorrect address to the Veteran's current address, and document such in the Veteran's claims file. Additionally, while this matter is on remand, to ensure that all due process requirements are met and the record is complete, the AOJ should also undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. With respect to VA treatment records, the claims file includes records from the Hines VA Medical Center (VAMC) dated up to the September 2015 examination. 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 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Hence, the AOJ should obtain from the noted facility (and any associated facility(ies)) all outstanding, pertinent records of evaluation and/or treatment of the Veteran, to include any records dated since September 2015, following the procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal, explaining that she has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2014); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). In this regard, in a May 2011 statement, the Veteran reported that she was receiving treatment from an orthopedist and was being referred to a neurologist. The claims file does not reflect treatment records around this time period. Also, the Board notes that the September 2015 VA examiner discussed the Veteran's Primary Care Associates records from December 2014 to July 2015. With the exception of a March 2015 MRI report submitted by the Veteran in July 2015, such records are not present in the claims file. As such, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records, to specifically include treatment records referenced in her May 2011 statement, as well as records from Primary Care Associates (referenced by the September 2015 examiner). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2015). 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 2014); 38 C.F.R. § 3.159 (2015). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. Adjudication of the claim should include consideration of whether "staged" rating (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Fenderson v. West, 12 Vet. App. 119 (1999), is warranted. The AOJ should consider all evidence associated with the claims file since the last adjudication. Accordingly, this matter is hereby REMANDED for the following action: 1. Undertake appropriate action to verify the Veteran's address, resend a copy of all documents formerly mailed to an incorrect address (including documents added to her claims file after January 2015) to the Veteran's current address, and document such in her claims file. 2. Obtain from the Hines VAMC (and any associated facility(ies)) all outstanding records of evaluation and/or treatment of the Veteran dated since September 2015. 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. 3. Furnish to the Veteran a letter requesting that she provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records, to include any treatment records referenced in her May 2011 statement, as well as records from Primary Care Associates (referenced by the September 2015 examiner). Clearly explain to the Veteran that she 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 her 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. Schedule the Veteran for a DRO hearing at the next available opportunity. If the Veteran no longer desires a DRO hearing, a signed writing to that effect should be placed in the claims file. 6. 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 must be undertaken. See Stegall, supra. 8. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence (to particularly include that added to the claims file since the last adjudication) and legal authority, to include discussion of whether staged rating of the disability, pursuant to Fenderson (cited above), is appropriate. 9. If the benefit sought on appeal remains denied, furnish to the Veteran an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford her the appropriate time period for response. 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 she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 2014). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).