Citation Nr: 0810682 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 05-31 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable initial disability rating for the veteran's service-connected hepatitis C disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Linda E. Mosakowski, Associate Counsel INTRODUCTION The veteran served on active duty from August 1972 to August 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that granted service connection and assigned a zero percent (noncompensable) disability rating for his hepatitis C disability, effective from December 1, 2003. A hearing was held before the undersigned Acting Veterans Law Judge via videoconference in November 2007. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Board finds that additional development of evidence is required. The RO determined that the veteran's claim was filed in December 2003. At that time, the veteran was living in New York. The claims folder shows that in September 2003, a search for VA records in New York had been made pursuant to a prior claim, but with no data available. Private treatment records were obtained for the period from February 2003 to August 2003. But for the period between August 2003 and October 2005, there are no medical treatment records in the file. Sometime before November 2004, the veteran moved to Pensacola, Florida, and was treated at the VA Outpatient Clinic in Pensacola. In June 2005, the veteran requested assistance in obtaining those Pensacola VA Outpatient Clinic records, which the veteran identified as beginning in April 2005). Although VA has a duty to assist a claimant in obtaining evidence to substantiate his claim (see 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2006)), nothing in the claims folder indicates that the RO requested those VA treatment records. In October 2005, the veteran changed his VA primary care facility to the Bay Pines Medical Center and the treatment records from his initial visit in October 2005 to October 2006 are in the claims folder. But after this appeal was certified to the Board, the veteran submitted a statement that he was recently hospitalized at the VA Medical Center in Bay Pines, Florida, due to his service-connected hepatitis C disability. He asked that his VA hospitalization records be obtained. Records that reflect the veteran's current condition are necessary in deciding the appropriate disability rating. Therefore, a remand is necessary for the purpose of obtaining VA records. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical treatment records are deemed to be within the control of VA and must be included in the record, as they may be determinative of the claim). The RO/AMC should ask the veteran to identify all VA treatment facilities (including any in New York, Pensacola, and Bay Pines) where he was treated from December 2002 forward, and make arrangements to obtain any identified records that are not already in the claims file. In addition, the veteran should be notified that all private medical records for the period from December 2002 to the present would be helpful in substantiating his claim for an increased initial rating. If, after reviewing the additional evidence, the RO/AMC concludes that it is not possible to evaluate the current severity of the veteran's condition from the evidence of record, another compensation and pension (C&P) examination may be scheduled. The veteran is hereby notified that if an examination is scheduled, it is the veteran's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. Accordingly, the case is REMANDED for the following action: 1. Send the veteran notice that all private medical records for the period from December 2002 to the present would be helpful in substantiating his claim and ask him to identify those private providers and authorize a release for those records. In addition, ask the veteran to identify all VA treatment facilities (including any in New York, Pensacola, and Bay Pines) where he was treated from December 2002 forward, and make arrangements to obtain any identified records that are not already in the claims file. 2. If, after reviewing the evidence of record, the RO/AMC concludes it is not possible to determine the current severity of the veteran's condition, an additional compensation and pension (C&P) examination may be scheduled. 3. Thereafter, readjudicate the claim. If any sought benefit is denied, issue the veteran and his representative a supplemental statement of the case. After they have been given an opportunity to respond, the claims file should be returned to this Board for further appellate review. 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. 2007). _________________________________________________ MICHAEL D. MARTIN Acting 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) (2007).