09-14 205
09-14 205
| Board of Vet. App. | Jul 31, 2017Background
- Veteran served on active duty Aug 1989–Aug 1995 and appealed multiple denials/low evaluations for musculoskeletal conditions (neck, wrists, hands, hips, knees, fingers, ankles).
- January 2008 RO decision granted service connection for several conditions (right knee patellar bursitis, left knee strain, left ring finger sprain, left ankle sprain) with noncompensable ratings; other claims were denied.
- March 2016 RO recharacterized both knee diagnoses as chondromalacia and assigned 10% ratings effective Nov 5, 2015.
- Board found evidence the Veteran had not received key VA correspondence (SSOC and Board letter) due to returned mail and noted the Veteran underwent VA‑approved private cervical spine surgery in June 2016 whose records were not in the file.
- The Board remanded for development: verify Veteran’s address, re‑send missing correspondence, obtain outstanding VA and private medical records (including Dr. Sipos’s June 2016 surgery records), then readjudicate and issue an SSOC if denials remain.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the record is complete for adjudication of the appealed claims given missing VA/private medical records | Veteran contends RO/VA lacks records of her June 2016 cervical surgery and other treatment, impeding proper adjudication | AOJ had not obtained/associated the Veteran’s outstanding VA and private surgery records prior to adjudication | Remand: VA must obtain and associate all outstanding VA and private medical records (including Dr. Sipos’s June 2016 cervical surgery) before readjudication |
| Whether the Veteran received required notices and SSOC to permit appellate rights | Veteran requested copies and reported nonreceipt due to moves; contends she didn’t receive SSOC and Board letter | VA mailed documents but multiple mailings were returned undelivered; file lacks evidence of successful re‑mailing | Remand: VA must verify the Veteran’s current address, resend the January 30, 2017 SSOC and Board April 18, 2017 letter (and any other undelivered correspondence), and document delivery |
| Whether additional development is required before substantive decisions on service connection/evaluation claims | Veteran’s pending claims may be affected by missing medical evidence and lack of notice opportunity to respond | AOJ previously adjudicated some issues without complete file/notice to Veteran | Remand: After obtaining records and verifying address, readjudicate claims; if any denials remain, issue SSOC and allow response, then return to Board |
| Administrative/expedition obligations following remand | Veteran seeks prompt resolution and development consistent with VA practice | VA must comply with remand duties and statutes governing development and expeditious processing | Remand order emphasizes statutory duties and directs AOJ to act expeditiously per governing law |
Key Cases Cited
- Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA must obtain relevant records and associate them with the claims file when indicated)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (appellant entitled to submit additional evidence and argument after remand)