Citation Nr: 1801531 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 12-12 625 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a bilateral foot disability. 3. Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from January 1981 to January 1984. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2010 rating decision in which the RO denied service connection for tinnitus, hearing loss, and back, right leg, and bilateral foot disabilities. In October 2010, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in April 2012 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) that same month. Additional development was thereafter undertaken and in an April 2017 rating decision, the RO granted service connection for tinnitus and for residuals of a right ankle fracture, which it indicated was claimed as a right leg condition. Disability ratings and effective dates were also assigned in connection with those awards. The Veteran was notified of the decision and of his appellate rights. To date, the Veteran has not disagreed with any aspect of the RO's decision granting service connection for tinnitus and/or a residuals of a right ankle fracture, to include the disability ratings assigned or effective dates of those awards. Those matters have accordingly been resolved. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of the award). Also in April 2017, the RO issued a supplemental SOC (SSOC) continuing the denial of the Veteran's claims for service connection for a back disability, a bilateral foot disability, and hearing loss. Those matters were then certified for appeal to the Board in May 2017. While the Veteran previously had a paper claims file, this appeal is now being processed primarily utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. There are additional documents stored electronically in a Virtual VA (Legacy Content Manager) file, consisting of adjudicatory decisions, notification letters, and VA examination reports. All such records have been reviewed. For reasons expressed below, the claims on appeal are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND In the Veteran's substantive appeal, received in May 2012, the Veteran requested a Board hearing before a Veterans Law Judge at a local VA office. A report of general information dated that same month indicates that the Veteran was contacted regarding his hearing request and, after explaining the hearing process to him, opted for a local hearing before a decision review officer (DRO). In correspondence received from the Veteran's representative on May 22, 2012, it was reiterated that the Veteran desired a personal hearing with a DRO. In May 2013, the Veteran inquired as to the status of his appeal, requesting that his DRO hearing be scheduled. Via letter dated February 18, 2016, the Veteran was informed that he had been scheduled for a hearing with a DRO, which hearing was to be held on March 3, 2016, at 9 PM. It is indicated that the Veteran did not report for his scheduled hearing; however, a handwritten notation contained on e-mail correspondence dated in September and October 2016 notes that the Veteran had been scheduled for a hearing on March 3, 2016, but that security would not allow the Veteran into the building to attend the hearing. Here, although the AOJ has indicated that the Veteran failed to report for his scheduled DRO hearing, the Board points out that the notice sent to the Veteran advising him of his hearing indicated that his hearing was scheduled for 9 PM. The Board finds this to likely be a typographical error in notification, as hearings are generally not scheduled at that time in the evening. Thus, although generally there is a "presumption of regularity" whereby it is presumed that public officers "have properly discharged their official duties," Fithian v. Shinseki, 24 Vet. App. 146, 150 (2010), the hearing notification letter raises a question on its face as to whether the Veteran received adequate notice of his scheduled hearing, and the presumption of regularity does not apply in this case. Further, the handwritten notation suggests that the Veteran did in fact report for his scheduled hearing, but was not allowed into the building by security. Given the likelihood that the Veteran's was erroneously informed of the time of his scheduled hearing, and the fact that the evidence suggests he did in fact attempt to report for the hearing, the Board concludes that the matters of appeal must be remanded so that another DRO hearing can be scheduled. If the Veteran no longer desires a DRO hearing, a signed writing to that effect should be placed in the claims file. Additionally, while these matters are 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 Northern Indiana VA Health Care System dated through August 6, 2016. 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 August 6, 2016, 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 claims on appeal (particularly as regards private (non-VA) medical treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1). But see 38 U.S.C. § 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 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). 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 claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Northern Indiana VA Health Care System (and any associated facility(ies)) all outstanding records of evaluation and/or treatment of the Veteran dated since August 6, 2016. 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. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide additional information and, if necessary, authorization, to obtain any additional evidence pertinent to the claims 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)medical 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). 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/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. 4. 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. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal in light of all pertinent evidence (to include all that added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s) since the last adjudication) and legal authority. 6. If any benefit(s) sought on appeal remain(s) denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).