Citation Nr: 1604896 Decision Date: 02/09/16 Archive Date: 02/18/16 DOCKET NO. 14-06 911A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUES 1. Entitlement to service connection for a right knee condition. 2. Entitlement to service connection for a left knee condition. 3. Entitlement to service connection for a hernia. 4. Entitlement to service connection for a left hand condition. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD M. Luboch, Associate Counsel INTRODUCTION The Veteran served on active duty from December 2003 to December 2008. This appeal to the Board of Veterans' Appeals (Board) arose from August 2012 and October 2013 rating decisions.. In the August 2012 rating decision, the RO denied, inter alia, service connection for a left hand condition. In October 2012, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was not issued. In the October 2013 rating decision, the RO denied service connection for the right knee condition, left knee condition, and for hernia in the abdomen. The Veteran filed an NOD in November 2013. An SOC was issued in December 2014. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2015, at which time the Veteran declined a BVA hearing. In a June 2015 decision, the Board remanded the claims for service connection for the right knee condition, a left knee condition, and a hernia in the abdomen, so that the Veteran could be afforded a VA examination. In its remand, the Board also directed the RO to issue a SOC on the claim for service connection for a left hand condition that was denied in the August 2012 rating decision. This appeal has been processed using the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems. For reasons expressed below, the claims on appeal are, again, being remanded to the agency of original jurisdiction (AOJ). The remand also again addresses the claim for service connection for a left hand condition, for which the Veteran has completed the first of two actions required to place this matter in appellate status. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further AOJ action in this appeal is warranted. In the June 2015 remand, the Board directed that, following completion of the development requested (an examination), the AOJ should readjudicate the Veteran's claims for service connection for right and left knee conditions and for a hernia in the abdomen, and issue a supplemental SOC (SSOC) reflecting such adjudication. The AOJ was also instructed to issue a SOC for the issue of entitlement to service connection for a left hand condition, pursuant to Manlincon v. West, 12 Vet. App. 238 (1999) and 38 C.F.R. §§ 20.201, 20.300 (2015). Pursuant to the remand, the Veteran was afforded a VA examination in August 2015 in connection with the claims for service connection for right and left knee conditions, and for a hernia in the abdomen.. Following the VA examination, however, the AOJ did not issue a SSOC, but, instead, returned those matters returned to the Board for further consideration. The AOJ also did not issue a SOC for the Veteran's service connection claim for the left hand condition, as directed. Simply stated, the AOJ did not fully comply with the June 2015 remand directives, as it did not issue an SSOC (with respect to the claims for which an appeal has been perfected) or an SOC (for the claim for which an appeal has been initiated). As such, these claims must be again remanded for compliance with the Board's prior remand directives.. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon an appellant, as a matter of law, the right to compliance with the terms of the remand order and imposes upon the VA a concomitant duty to ensure compliance with those terms). While these matters are on remand, to ensure that all due process requirements are met, and the record is complete, the AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal, explaining that he 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). 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 (to include obtaining further medical opinion(s), if appropriate), prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Furnish to the Veteran and his attorney an SOC addressing the claim of entitlement to service connection for a left hand condition, along with a VA Form 9, and afford them the appropriate opportunity to file a substantive appeal perfecting an appeal on this issue. The Veteran and his attorney are hereby reminded that to obtain appellate review of any issue not currently in appellate status. a timely appeal must be perfected-as regards the claim referenced above, within 60 days of the issuance of the SOC. 2. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. 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). 3. 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 and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After undertaking all requested action, and any additional notification or development deemed warranted (to include arranging to obtain further medical opinion(s), if appropriate), readjudicate the claims for service connection for a right knee condition, a left knee condition, and a hernia in the abdomen, in light of all pertinent evidence (to particularly include that received after the December 2014 SOC), and legal authority. 5. If any benefit sought on appeal remains denied, furnish the Veteran and his attorney an appropriate SSOC that includes citation to and discussion of any additional evidence and legal authority considered, along with clear reasons and bases for all determinations, and afford them the appropriate time period for response. 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 should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 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. 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).