Citation Nr: 0003446 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 97-24 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from August 1974 to April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1997 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida, which denied a claim by the veteran seeking entitlement to service connection for back and right knee disorders. Initially, the veteran had requested a personal hearing in connection with this appeal before a Member of the Board at the RO. He was notified at his last known address that a hearing was scheduled for December 9, 1999. However, he failed to report at the appointed time and place. REMAND The veteran contends, in essence, that he currently has back and right knee disorders that are related to his active military service. After careful review of the claims file, the Board finds that this case is not yet ready for appellate review. Initially, the Board notes that the law provides that "a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C.A. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit held that, under 38 U.S.C. § 5107(a), VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the Court issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). However, regardless of whether a claim is found to be well grounded or not, and prior to that determination, the VA has a duty to notify the veteran of the evidence necessary to complete his or her claim, if that claim is incomplete. 38 U.S.C.A. § 5103(a) (West 1991). The United States Court of Appeals for Veterans Claims (formerly Court of Veterans' Appeals) has held that the duty to inform includes advising the veteran that evidence, the existence of which the VA has notice and which may make a claim plausible, was needed to complete his claim. Robinette v, Brown, 8 Vet. App. 69, 80 (1995); see also Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under § 5103(a) to assist claimant in filing his claim pertains to relevant evidence which may exist or could be obtained); Epps v. Brown, 9 Vet. App. 341 (1996) (§ 5103(a) duty attaches in cases where the record references other known and existing evidence that might pertain to the claim under consideration). In this case, the veteran's October 1996 Application for Compensation or Pension, VA Form 21-526, which forms the basis of this appeal, specifically indicates that he was being treated for his back and right knee disorders at the VA Medical Center (VAMC) in West Palm Beach, Florida. However, the claims file shows no attempt by the RO to obtain such records or to notify the veteran that he should submit such evidence in order to complete his claim. 38 U.S.C.A. § 5103(a) (West 1991). In addition, the RO's April 1997 rating decision and June 1997 Statement of the Case indicate that no such records were considered in its determinations. Because such records may be available and pertinent to this claim, an attempt by the RO should be made to obtain such records prior to appellate review. Id.; see 38 C.F.R. § 3.159(c) (1999); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (per curiam) (VA has duty to consider all evidence in its constructive possession). Overall, the Board finds that the VA's duty to inform the veteran pursuant § 5103(a) has not been satisfied. An attempt to obtain copies of any VA medical records from the VAMC in West Palm Beach, Florida, dated since the veteran's separation from service in April 1980, should be accomplished. The Board makes no finding as to whether the veteran has presented well grounded claims, invoking a duty to assist with evidence in support of his claim pursuant to 38 U.S.C.A. § 5107(a) (West 1991). Accordingly, further appellate consideration will be deferred and the case in hereby REMANDED to the RO for the following development: 1. The RO should attempt to obtain any and all VA medical records from the VAMC in West Palm Beach, Florida, dated since April 1980. If they prove unavailable, the veteran should be given notice of this fact and provided the opportunity to submit such records, as well as any other evidence that he wants considered by the RO. Copies of all correspondences made and records obtained should be added to the claims folder. 2. After the above development has been completed, the RO should review the claims of entitlement to service connection for a back disorder and a right knee disorder, to determine if any change is warranted in its prior decision. 3. If any action remains adverse to the veteran, he and his representative should be furnished a Supplemental Statement of the Case which summarizes the pertinent evidence, fully cites the applicable legal provisions, and reflects detailed reasons and bases for the decision(s) reached. Thereafter, the veteran and his representative should be afforded the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND the Board intimates no opinion, either factual or legal, as to the ultimate determination warranted in this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. A. BRYANT Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).