Citation Nr: 1756986 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 13-03 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 20 percent for right foot gout. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD E. Redman, Counsel INTRODUCTION The Veteran served on active duty from December 1962 to October 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida, which, in pertinent part, granted service connection for right foot gout and assigned a noncompensable rating effective July 17, 2009, the date the claim for service connection was received by VA. When the case was before the Board in May 2017 it was remanded for additional development. In an August 2017 rating decision, an increased rating of 20 percent was granted for right foot gout, effective July 17, 2009. As this is not the highest possible rating for this disability, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The May 2017 remand instructed the AOJ to request from the Veteran a list of all treatment providers who treated him for his right foot gout since leaving service. The remand also instructed the AOJ to obtain any outstanding VA treatment records not already of record. The record reflects that the Veteran submitted a VA Form 21-4142 on September 12, 2017, authorizing VA to obtain the Veteran's private treatment records from Dr. Morrow and his treatment records from the Naval Hospital in Pensacola. A September 27, 2017, report of contact notes that Dr. Morrow's office informed VA via telephone that the Veteran's treatment records had been destroyed by the hurricane. In November 2017, the Veteran's VA treatment records dating from December 2009 through October 2017 were added to the claims file. Also in November 2017 the Veteran's treatment records from the Naval Hospital in Pensacola were added to the claims file. The record reflects that the most recent supplemental statement of the case was issued in August 2017; it reflects consideration of VA treatment records dating through June 2017. Importantly, as reflected above, after the August 2017 supplemental statement of the case was issued, VA treatment records dating from June 2017 through October 2017 and the Veteran's treatment records from the Pensacola Naval Hospital were added to the record. These records are relevant to the claim on appeal. Thus, the most recent supplemental statement of the case was issued prior to the completion of all development action by the AOJ and therefore, the adjudication did not consider the additional VA treatment record evidence or Naval Hospital treatment evidence. Under 38 C.F.R. § 20.1304 (c), the Veteran may waive his right to have any pertinent evidence submitted by him or his representative reviewed by the AOJ in the first instance. However, the VA treatment record evidence/Naval Hospital record evidence is not evidence submitted by the Veteran or his representative. Therefore, despite the Veteran's September 2017 waiver, this evidence must be considered by the AOJ in the first instance, and a remand is required in order to accomplish that. 38 C.F.R. §§ 19.37 (b), 20.1304(c) (2017). Additionally, to date, VA has not provided the Veteran notice pursuant to 38 C.F.R. § 3.159 (e) regarding the unavailability of the private treatment records from Dr. Morrow. Accordingly, on remand, the Veteran must be provided notice in accordance with 38 C.F.R. § 3.159 (e) for the unavailable private treatment records. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a proper notice that meets the requirement under 38 U.S.C. § 5103A (b)(2) (2012) and 38 C.F.R. § 3.159 (e) (2017) regarding VA's inability to obtain the Veteran's treatment records from Dr. Morrow. 2. Re-adjudicate the issue on appeal, including consideration of all newly acquired evidence since the August 2017 Supplemental Statement of the Case. If the benefits sought on appeal remain denied, a Supplemental Statement of the Case must be provided to the appellant and his representative, and they should be afforded an adequate opportunity to respond. 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. §§ 5109B, 7112 (2012). _________________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).