Citation Nr: 1732001 Decision Date: 08/08/17 Archive Date: 08/16/17 DOCKET NO. 12-13 456 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to service connection for a right elbow disorder. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1970 to July 1974. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2012 rating decision in which the RO denied service connection for a right elbow injury. In July 2013, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2014, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2014. In June 2015, the Veteran testified during Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing has been associated with the claims file. In August 2015 and March 2016, the Board, inter alia, remanded the claim on appeal to the agency of original jurisdiction (AOJ) for further action, to include additional development. After accomplishing further action, on each occasion, the AOJ continued to deny the claim (as reflected, most recently, in an August 2016 supplemental statement of the case (SSOC), and returned the matter to the Board. The Board notes that, in addition to the right elbow claim, the Veteran had previously perfected appeals of a claim for a higher initial rating for posttraumatic stress disorder (PSTD) and a claim for service connection for cervical spine disorder. However, as each of those matters was addressed in a March 2016 Board decision, they are no longer in appellate status. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems. For reasons expressed below, the remaining claim on appeal is, again, being remanded to the AOJ. VA will notify the Veteran hen further action, on his part, is required. REMAND Unfortunately, the Board finds that further action on the remaining claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon a 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 August 2015 remand, the Board noted the Veteran's allegation that he injured his elbow during boot camp at the Orlando Naval Station. Specifically, he stated that, as he was coming out of the shower, he slipped and hit his right elbow on a doorjamb. The Veteran stated that his chief sent him to sick bay and that X-rays were taken, that his elbow was bandaged, and he was put on light duty for three days. Records show that the Veteran was stationed at the Orlando Naval Station from July 1970 to October 1970. The Board also noted the Veteran's contention that his service treatment records were incomplete, and that records pertaining to the treatment he received for his right elbow injury while in boot camp at the Orlando Naval Station in 1970 were not of record. See June 2015 Hearing Transcript. Thus, the Board directed the AOJ to conduct an additional search for the Veteran's records of medical treatment at the Orlando Naval Station. In the March 2016 remand, the Board noted that while the AOJ made a request for additional service treatment and personnel records in August 2015, that request was made to the National Personnel Records Center (NPRC). The NPRC provided copies of the Veteran's military personnel file, but no additional service treatment records, including medical records from the Orlando Naval Station, were associated with the record. Thus, the Board again directed the AOJ to conduct an additional search for medical records directly with the medical facilities at the Orlando Naval Station. The claims file includes information that, in April 2016, the AOJ made a request for the Veteran's additional service treatment records for right elbow injury from July 31, 1970 to October 16, 1970 at Orlando Naval Station. In August 2016, the AOJ received a response that search results were negative because no record was found. However, the AOJ did not identify which source[s] was/were contacted in the April 2016 inquiry, or , that provided the August 2016 response. In this regard, the Board notes that, consistent with the procedures set forth in 38 C.F.R. 3.159(c), in requesting records from Federal facilities, efforts to obtain such records should continue until VA concludes that the records sought do not exist or that further efforts to obtain such records would be futile. See 38 C.F.R. 3.159(c)(2) (2016). To that end, there is no indication in the claims file that the Veteran's VA medical records at the Orlando Naval Station do not exist or that further efforts to obtain those records would be futile. Therefore, a remand of this matter is warranted for the AOJ to undertake appropriate action to obtain the Veteran's medical records from the Orlando Naval Station. and for compliance with the provisions of38 C.F.R. § 3.159(e). In addition to taking action responsive to the above, while this matter is on remand, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, as noted previously, the claims file reflects that the Veteran has been receiving treatment from the VA Medical Center (VAMC) in Portland, Oregon, and that records from this facility dated through September 2015 are associated with the file; and more recent records may exist. However, the claim file contains no record of the AOJ's request(s), if any, for updated VA treatment records, as previously sought. Such action should be accomplished on remand. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal (particularly, as regards private (non-VA treatment, 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 (2016). 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 (2016). 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 remaining claim on appeal. Adjudication of the claim should include consideration of all evidence added to the claims file since the last adjudication. Accordingly, this matter is hereby REMANDED for the following action: 1. Contact any appropriate source(s), to specifically include the Orlando Naval Station, to obtain any medical records related to the Veteran's right elbow from his time at the Orlando Naval Station (July 31, 1970, to October 16, 1970). In making any request, use the Veteran's complete last name, as listed on his DD Form 214, and clearly identify the source(s) contacted. All records and/or responses received should be associated with the claims file. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. Continue efforts to obtain these records until either the evidence/information is received, or until specific information that the evidence/information sought does not exist or that further efforts to obtain it/them would be futile is obtained. If the records cannot be obtained after reasonable efforts have been made, issue a formal determination in this regard, and notify the Veteran and his representative of the inability to obtain the records. 2. Undertake appropriate action to obtain any outstanding, pertinent records of VA evaluation and/or treatment of the Veteran since September 8, 2015. Follow the provisions of 38 C.F.R. § 3.159 as regards to obtaining records from Federal facilities in procuring such records. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information and, if necessary, authorization, to obtain any additional evidence pertinent to the remaining 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. 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). 4. 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/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. 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. See Stegall, 11 Vet. App. at 271. 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the remaining claimon appeal in light of all pertinent evidence (to include all evidence added to the VBMS and/or Virtual VA file(s) since the last adjudication) and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an SSOC that includes clear reasons and bases for all determinations, and afford them an 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 benefit 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. 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) (2016).