Citation Nr: 18156454 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 07-10 022A DATE: December 11, 2018 REMANDED Entitlement to service connection for arthritis is remanded. Entitlement to service connection for bilateral hip disorders is remanded. Entitlement to service connection for bilateral knee disorders is remanded. Entitlement to service connection for bilateral ankle disorders is remanded. Entitlement to service connection for a right foot disorder is remanded. Entitlement to service connection for a left rib cage disorder is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for neurological disorders of the bilateral upper and lower extremities, to include peripheral neuropathy and/or radiculopathy is remanded. Entitlement to service connection for a psychiatric disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REFERRED The issue of entitlement to nonservice-connected pension benefits was raised in a September 8, 2016 claim and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. REASONS FOR REMAND The Veteran had active duty service from July 1959 to July 1961; the Veteran died in December 2016 and the appellant in this case is the Veteran’s surviving spouse, who has been substituted for the Veteran. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2006, October 2011, and August 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Board reflects that this case is procedurally complex. However, in short, the Agency of Original Jurisdiction (AOJ) denied the above claims to reopen service connection for hypertension and psychiatric disorders, and service connection for right foot, left rib cage, and arthritis disorders in a September 2006 rating decision. Those claims were initially before the Board in August 2011, at which time the Board reopened service connection for a psychiatric disorder and remanded that claim and the hypertension, right foot, left rib cage, and arthritis claims for additional development. The Board additionally denied reopening service connection for diabetes mellitus and spinal disorders, as well as service connection for a disorder of the thoracic spine in the August 2011 Board decision. Those claims were appealed to the United States Court of Appeals for Veterans Claims (Court), which vacated the Board’s August 2011 decision and remanded those claims back to the Board in September 2012. Meanwhile, the AOJ additionally denied service connection for bilateral hip, knee, ankle, and bilateral upper and lower extremity neurological disorders, and entitlement to TDIU in an October 2011 rating decision. The Veteran timely appealed those decisions. All of the above claims were before the Board in May 2013, at which time the Board remanded those claims for additional development. Those claims were all returned to the Board in January 2014, at which time the Board denied reopening service connection for a spinal disorder, diabetes mellitus, and hypertension, and also denied service connection for psychiatric, right foot, left rib cage, and arthritis disorders. The Veteran again appealed that Board decision to the Court, which affirmed the Board’s denials of reopening service connection for spinal and diabetes mellitus disorders in an October 2014 Memorandum Decision; those claims are therefore final and will no longer be discussed in this decision. The Court, however, vacated the Board’s January 2014 decision as to the hypertension, psychiatric, right foot, left rib cage, and arthritis claims and those claims were returned to the Board in that October 2014 Memorandum Decision. Those claims were returned to the Board in May 2015, at which time the Board reopened service connection for hypertension, and remanded the claims of service connection for hypertension, psychiatric, right foot, left rib cage, arthritis, bilateral knee, bilateral hip, bilateral ankle, and bilateral upper and lower extremity neurological disorders, and entitlement to TDIU claims for additional development. In December 2016, which was during the pendency of that remand and before the AOJ recertified those claims back to the Board for additional appellate review, the Veteran died. The Board therefore issued a dismissal of the hypertension, psychiatric, right foot, left rib cage, arthritis, bilateral knee, bilateral hip, bilateral ankle, bilateral upper and lower extremity neurological disorders, and TDIU claims due to the death of the claimant in March 2017. The appellant timely filed a Dependency and Indemnity Compensation (DIC) claim in March 2017, and the AOJ found that the appellant was a proper substitute for those claims on an accrued basis in a July 2018 memorandum associated with the file. Those claims have therefore been returned to the Board at this time for further appellate review. As a final initial matter, the Board reflects that the appellant and her representative additionally included the appellant’s DIC claim for cause of the Veteran’s death in their October 2018 informal hearing presentation. The Board reflects that claim was denied by the AOJ in an August 2017 rating decision, which the appellant timely appealed with a November 2017 Notice of Disagreement and August 2018 substantive appeal, VA Form 9, following a February 2018 statement of the case. Although the appellant has taken all actions necessary to perfect her appeal of the August 2017 denial of DIC benefits, the AOJ, in a November 2018 memorandum in the file, has indicated that it has continued to work on that issue and has not certified it to the Board. Therefore, it would be premature for the Board to address that issue at this time. The other claims currently before the Board are remanded for the reasons below. The most recent VA treatment records of record are from September 2015. In a January 2017 statement, the appellant indicated that the Veteran died at the VA hospital in December 2016. Consequently, it appears that there are outstanding VA treatment records respecting the Veteran which are not in the record and a remand of the above claims is necessary in order to associate those records with the claims file. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016); Bell v. Derwinski, 2 Vet. App. 611 (1992). Moreover, in the May 2015 Board remand, the Board directed the AOJ to request from that the Veteran identify any private treatment records that were outstanding at that time. The AOJ sent the Veteran a September 2015 letter requesting information regarding any private treatment that he was receiving; that letter was addressed incorrectly and was returned to VA as undeliverable in October 2015. The AOJ did not correct the address and resend that letter. Accordingly, the Board cannot find that the previous remand directives were substantially complied with in this case, and a remand is necessary in order to ensure compliance with those previous remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). Finally, on remand, the AOJ should review the claims file and ensure that any and all translation of documents, particularly respecting the Social Security and private treatment records from Dr. C.A.M.R. that are of record, has been completed. The matters are REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the San Juan VA Medical Center, or any other VA medical facility that may have treated the Veteran during his lifetime, and associate those documents with the claims file. 2. Ask the appellant to identify any private treatment that the Veteran may have had during his lifetime for his hypertension, psychiatric, right foot, left rib cage, arthritis, bilateral knee, bilateral hip, bilateral ankle, and bilateral upper and lower extremity neurological disorders, which is not already of record, to include any records from Dr. C.M.A.R., and the San Juan Capestroano and Paniamericano Hospitals. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Ensure that translation of all documents, including of the Social Security Administration records and private treatment records from Dr. C.M.A.R., has been completed. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Peters, Counsel