Citation Nr: 1127755	
Decision Date: 07/25/11    Archive Date: 08/02/11

DOCKET NO.  08-13 863	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial disability evaluation in excess of 10 percent for the service-connected degenerative disc disease and arthritis, status post fusion, C4-5 and C6-7.

2.  Entitlement to an increased (compensable) disability evaluation for the service-connected left ear hearing loss.

3.  Entitlement to service connection for a right knee disorder.

4.  Entitlement to service connection for a left knee disorder.


REPRESENTATION

Appellant represented by:	The American Legion



WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

L.B. Cryan, Counsel


INTRODUCTION

The Veteran has verified active duty from September 1951 to March 1961 and from July 1971 to July 1972, including service in the Republic of Vietnam.  He had a total of 19 years and nine months of active duty.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In a March 2008 rating decision, the RO increased the rating for degenerative disc disease and arthritis, status post fusion, C4-5 and C6-7, to 10 percent disabling, effective from February 14, 2006.  As that award was not a complete grant of benefits, the issue remains in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993).

In April 2010, the Veteran testified at a Video Conference Board hearing before the undersigned Veterans Law Judge.  A transcript of this hearing is associated with the claims folder.

In July 2010, the Board issued a decision denying entitlement to service connection for a right ear hearing loss and for loss of teeth.  The remaining issues on appeal of entitlement to an initial disability rating in excess of 10 percent for the service-connected degenerative disc disease and arthritis, status post fusion, C4-5 and C6-7; entitlement to service connection for a right knee disorder; entitlement to service connection for a left knee disability; and, entitlement to a compensable disability rating for the service-connected left ear hearing loss were remanded back to the RO for additional development of the record.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

After completion of the development requested in the Board's July 2010 remand, the RO issued a supplemental statement of the case in April 2011.  In June 2011, the RO received a request with a signed authorization from the Veteran to obtain additional records from the Cleveland Clinic dated from April 2010 to the present, in support of his claims on appeal.  It appears that the claims file contains records from the Cleveland Clinic dated up to September 2010, but no records dated beyond that time frame.  VA's duty to assist claimants in obtaining evidence includes, making reasonable efforts to obtain medical evidence identified by the claimant that is not in the custody of Federal Department or Agency, to include private medical care providers.  See 38 C.F.R. § 3.159(c)(1).  In light of the foregoing, the case must be remanded to obtain the private treatment records identified by the Veteran as relevant to his claims on appeal.  

In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body.  Accordingly, the RO should request VA medical records pertaining to the veteran that are dated from October 2010 to the present.

Accordingly, the case is REMANDED for the following action:

1.  Per the Veteran's June 2011 written authorization, obtain and associate with the claims folder all pertinent private treatment records from the Cleveland Clinic dated from September 2010 to the present.

2.  Obtain and associate with the claims file all VA records dating from October 2010.  

3.  Ensure the above development has been conducted in accordance with the instructions above.  Thereafter, readjudicate the Veteran's claims after taking any other development action deemed warranted, which may include contemporaneous examinations to determine the current nature, extent and severity of the service-connected cervical spine disability and/or left ear hearing loss.  If any benefit on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC), and an appropriate period to respond before the case is returned to the Board.  

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  Expedited handling is requested.)

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 Supp. 2010).



_________________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), 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) (2010).




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