Citation Nr: 0002886 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 98-12 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The veteran had over 23 years of active military service, with his last period of service from September 1983 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1997 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Montgomery, Alabama, which, in pertinent part, denied the above claims. In October 1999, a hearing was held before the undersigned, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7107(c) (West Supp. 1999). The Board must consider all documents submitted prior to its decision and review all issues reasonably raised from a liberal reading of these documents. Suttmann v. Brown, 5 Vet. App. 127, 132 (1993) (citations omitted). Where such review reasonably reveals that the claimant is seeking a particular benefit, the Board is required to adjudicate the issue or, if appropriate, remand the issue to the RO for development and adjudication; however, the Board may not ignore an issue so raised. Id. On the other hand, the Board is not required to anticipate a claim for a particular benefit where no intention to raise it was expressed by the appellant. See Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995); see also Brannon v. West, 12 Vet. App. 32, 34-35 (1998) ("[B]efore [the RO or Board] can adjudicate an original claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). In this case, the veteran's substantive appeal in July 1998 referenced claims of entitlement to service connection for a bunion on the first toe of the left foot and onychomycosis of the fifth toenail of the left foot, but the November 1997 rating decision had granted these claims for service connection, with assignment of zero percent disability ratings for each disorder. That was a full grant of the benefits sought by the veteran in his claims for compensation. Cf. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (The issue of the amount of compensation for a service-connected disability is a different issue than entitlement to service connection for that disability, and a second Notice of Disagreement must be filed by the veteran in order to initiate appellate review concerning the issue of compensation.) It is unclear whether it was the veteran's intention to specifically raise claims of entitlement to compensable disability ratings for these conditions. He is hereby advised of the need to file a formal claim with the RO if he wishes to file claims for increased ratings for any service-connected disorder. REMAND Additional evidentiary development is needed prior to further disposition of these claims. Where a claimant has filed an application for benefits and VA has notice of the existence of evidence that may be sufficient to well ground the claim, VA has a duty to inform the veteran of the necessity to submit that evidence to complete his application for benefits. See Robinette v. Brown, 8 Vet. App. 69 (1995); 38 U.S.C.A. § 5103(a) (West 1991). The veteran has indicated that he has received treatment from Kenneth Taylor, M.D., for his knee disorders, and he has also submitted evidence showing treatment from Stephen Samelson, M.D. In light of the veteran's treatment during service for bilateral knee pain, it is appropriate that attempts be made to obtain these post-service treatment records. The RO should ask the veteran to complete the necessary releases so that the RO can request his records from Drs. Taylor and Samelson. If either request is unsuccessful, inform the veteran that the records could not be obtained, and advise him that these treatment records are important to his claims. The veteran must be told that it is his responsibility to present evidence in support of his claims, and he should be offered an opportunity to obtain and present such records if he wants them to be considered. 38 C.F.R. § 3.159(c) (1999); see also 38 U.S.C.A. § 5103(a) (West 1991). Accordingly, this case is REMANDED for the following: 1. Ask the veteran to submit the appropriate release forms for his treatment records from Drs. Taylor and Samelson, as well as any other physician/medical facility that has treated him for either knee since his separation from service. Request actual treatment records, as opposed to summaries, from these physicians, and, if any request is unsuccessful, advise the veteran that the actual treatment records from Drs. Taylor and Samelson are important to his claims. Advise the veteran that it is his responsibility to submit them. See 38 C.F.R. § 3.159(c) (1999). Allow an appropriate period of time within which to respond. 2. After obtaining as many of the above referenced records as possible and/or allowing the veteran an opportunity to submit such records, readjudicate the veteran's claims, with application of all appropriate laws and regulations and consideration of any additional evidence developed upon remand. If any benefit sought on appeal remains denied, provide the veteran a supplemental statement of the case, and allow an appropriate period for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran has the right to submit additional evidence and argument on the matters that the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to obtain additional information. No inference should be drawn regarding the final disposition of these claims as a result of this action. These claims 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. BETTINA S. CALLAWAY 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).