Citation Nr: 1628245 Decision Date: 07/14/16 Archive Date: 07/28/16 DOCKET NO. 04-06 439 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating greater than 10 percent for degenerative joint disease of the left knee. 2. Entitlement to an initial rating greater than 10 percent for a right knee disability. 3. Entitlement to an initial rating greater than 10 percent for a left ankle disability. 4. Entitlement to an initial rating greater than 10 percent for a right ankle disability. 5. Entitlement to an initial rating greater than 10 percent for a lumbosacral spine disability. ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from July 1995 to March 2002. He also had additional unverified service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which granted, in pertinent part, the Veteran's claims of service connection for degenerative joint disease of the left knee, a right knee disability, a left ankle disability, a right ankle disability, for a lumbosacral spine disability, assigning separate 10 percent ratings effective April 1, 2002, for each of these disabilities. The Veteran disagreed with this decision in October 2003. He perfected a timely appeal in February 2004. Because the Veteran currently lives within the jurisdiction of the RO in Houston, Texas, that facility has jurisdiction in this appeal. Similarly, although the Veteran initially appointed Alabama Department of Veterans Affairs as his service representative in September 2002, because he no longer lives in the state of Alabama, he can no longer be represented by this service organization. Therefore, the Veteran currently is considered unrepresented before VA. This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The Board notes in this regard that it encountered unusual delays in considering the Veteran's appeal because of delays in scanning his claims file in to VBMS at the Agency of Original Jurisdiction (AOJ). In November 2006 and in April 2009, the Board remanded this matter to the AOJ for additional development. Unfortunately, as is explained below, the appeal is REMANDED again to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran contends that his service-connected degenerative joint disease of the left knee, right knee disability, bilateral ankle disabilities, and lumbosacral spine disability are all more disabling than currently (and initially) evaluated. The Board acknowledges that this claim was remanded to the AOJ in November 2006 and in April 2009. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this appeal again, additional development is required before the underlying claims can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). The Board notes that, in its November 2006 remand, it directed that the AOJ attempt to obtain the Veteran's VA vocational rehabilitation folder and associate it with the claims file. See Board remand dated November 22, 2006, at pp. 2-3. Unfortunately, and although this appeal subsequently was remanded to the AOJ in April 2009, to date, there is no indication that the AOJ attempted to obtain the Veteran's VA vocational rehabilitation folder. Nor has the Veteran's VA vocational rehabilitation folder been associated with his VBMS or VVA paperless claims files. (The Board notes parenthetically that it is not clear from a review of the Veteran's VBMS and VVA electronic paperless claims files whether the Veteran's VA vocational rehabilitation folder previously was associated with his paper claims file and then not scanned in to VBMS as the existence of this folder was not addressed in the April 2009 Board remand.) The United States Court of Appeals for Veterans Claims (Court) has held that VA is on constructive notice of all documents generated by VA, even if the documents have not been made part of the record in a claim for benefits. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Thus, the Board finds that, on remand, the AOJ should attempt to obtain the Veteran's VA vocational rehabilitation folder and scan it in to VBMS. The Board acknowledges in this regard that the AOJ complied with the remainder of the remand instructions in both November 2006 and in April 2009 when it attempted to schedule the Veteran for updated VA examinations to determine the current nature and severity of his service-connected disabilities. The Veteran failed to report for multiple VA examinations scheduled in connection with his appeal for higher initial ratings during the pendency of this appeal. Given his failure to report to these examinations, the Board finds that the Veteran should not be scheduled for any further examinations with respect to his currently appealed claims. In this regard, the Court has held that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, the Board finds that, when this case returns from the AOJ, the Veteran's currently appealed claims will be adjudicated based on the evidence of record. See also 38 C.F.R. §§ 3.655(a)-(b) (2015). In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the AOJ to re-certify this appeal to the Board in March 2016 without complying with all of the November 2006 remand instructions. Given this error, another remand is required. Accordingly, the case is REMANDED for the following action: 1. As requested in the Board's November 2006 remand, obtain and associate the Veteran's VA vocational rehabilitation folder with his claims file. All efforts to obtain and associate the Veteran's VA vocational rehabilitation folder with the claims file should be documented in VBMS. If the Veteran's VA vocational rehabilitation folder is obtained, then it should be scanned in to VBMS. If the Veteran's VA vocational rehabilitation folder cannot be obtained and associated with the claims file, then this fact should be noted in a memorandum to the record which should be scanned in to VBMS. 2. Review the Veteran's claims file to ensure that all development requested in this REMAND has been completed, to the extent possible. If the requested records have not been obtained, then take necessary corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, then the AOJ should issue a supplemental statement of the case to the Veteran which contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran. Thereafter, the case should 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 2014). _________________________________________________ MARJORIE A. AUER 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 your appeal. 38 C.F.R. § 20.1100(b) (2015).