Citation Nr: 1001973	
Decision Date: 01/12/10    Archive Date: 01/22/10

DOCKET NO.  04-34 053	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
 in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for cervical spine 
disability, to include as secondary to his service-connected 
left knee disability.  

2.  Entitlement to a total rating due to individual 
unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Military Order of the Purple 
Heart of the U.S.A.


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Katie Molter, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from September 1966 to 
September 1969.  He received numerous awards including the 
Purple Heart.

This matter has come before the Board of Veterans' Appeals 
(Board) on appeal from a January 2004 rating decision in 
which the RO, in part, determined that new and material 
evidence had not been received to reopen a claim for 
entitlement to service connection for cervical spine 
disability.  The Veteran perfected an appeal of that 
decision.

The Veteran testified at a hearing before a Decision Review 
Officer at the RO in April 2004.  A transcript of that 
hearing has been reviewed and associated with the claims 
file.

In the July 2007 Informal Hearing Presentation, the Veteran's 
representative requested that the Board consider entitlement 
to TDIU based on the September 2006 VA examiner's notation 
that pain in the left shoulder, left knee and low back 
"forced the Veteran to retire from gainful employment in 
2003."  

Both of these claims were previously before the Board and 
were remanded for further development in September 2007 

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




REMAND

Unfortunately these claims have to be remanded once again.  
The Veteran, in a written statement, received in October 
2009, stated that he had approximately fifteen physical 
therapy sessions for his cervical spine disability between 
June and July of 2009 at the Butler VA medical center.  
However, the claims file does not contain records from these 
physical therapy sessions.  The Board emphasizes that records 
generated by VA facilities that may have an impact on the 
adjudication of a claim are considered constructively in the 
possession of VA adjudicators during the consideration of a 
claim, regardless of whether those records are physically on 
file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); 
Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Hence, on 
remand, the RO must obtain all outstanding pertinent medical 
records from the Butler VA medical center, following the 
procedures prescribed in 38 C.F.R. § 3.159 as regards 
requesting records from Federal facilities.

The Board notes that the issue of TDIU is held in abeyance 
pending the completion of the requested development, because 
where a decision on one issue would have a "significant 
impact" upon another, and that impact in turn could render 
any review of the decision on the other claim meaningless and 
a waste of appellate resources, the two claims are 
inextricably intertwined.  Henderson v. West, 12 Vet. App. 
11, 20 (1998), Harris v. Derwinski, 1 Vet. App. 180 (1991); 
Parker v. Brown, 7 Vet. App. 116, 118 (1994).

Accordingly, the case is REMANDED for the following action:

1.  The RO should obtain all outstanding 
records of evaluation and/or treatment of 
the Veteran from the Butler VA medical 
center.  Specifically, records from the 
Veteran's June and July 2009 physical 
therapy sessions should be requested.  
The RO must follow the procedures set 
forth in 38 C.F.R. § 3.159(c) as regards 
requesting records from Federal 
facilities.  All records and/or responses 
received should be associated with the 
claims file.

2.  After completing the requested 
action, and any additional notification 
and/or development deemed warranted, 
readjudicate the claims on appeal, in 
light of all pertinent evidence and legal 
authority.  If the determination remains 
adverse, the Veteran and his 
representative should be furnished a 
supplemental statement of the case, to 
include the provisions of 38 C.F.R. 
§ 3.156(a), and afforded an appropriate 
period of time to respond.  

The Veteran has the right to submit additional evidence and 
argument on the 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. 2009).




_________________________________________________
DEBORAH W. SINGLETON
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) (2009).