Citation Nr: 1030003 Decision Date: 08/11/10 Archive Date: 08/24/10 DOCKET NO. 09-17 560 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for chronic lymphocytic leukemia (CLL), to include as due to exposure to herbicides. 2. Entitlement to service connection for a penile disability (claimed and developed as erectile dysfunction), to include as due to exposure to herbicides. 3. Entitlement to service connection for hypertension, to include as due to exposure to herbicides. 4. Entitlement to service connection for a kidney disability (claimed and developed as kidney disease), to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. Flot, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In April 2010, a Video Conference hearing regarding this matter was convened before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The issue of entitlement to service connection for non- Hodgkin's lymphoma has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. (CONTINUED ON NEXT PAGE) REMAND The Veteran's claims of entitlement to service connection for CLL, for a penile disability, for hypertension, and for a kidney disability unfortunately must be remanded. Although the Board sincerely regrets the delay this will cause, adjudication cannot proceed without further development. VA has a duty to assist the Veteran in the development of his claims. This duty includes making reasonable efforts to help him procure pertinent records, whether or not they are in Federal custody. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c). Treatment records from VA facilities in and around Nashville, Tennessee, dated from July 2001 to June 2003 and from June 2005 to September 2006 have been associated with the claims file. These records reflect that the Veteran has received ongoing treatment from VA for a variety of health issues, including CLL, erectile dysfunction, other penile anomalies, hypertension, and a history of kidney stones. Indeed, the Veteran's wife testified at the April 2010 Video Conference hearing that all of the Veteran's health care with the exception of cataract surgery has been and continues to be provided by VA. No VA treatment records dated before July 2001, between June 2003 and June 2005, or after September 2006, however, are currently before the Board. In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Attempts must be made on remand to obtain the Veteran's missing VA treatment records from facilities in and around Nashville, Tennessee, for this reason and because they are potentially relevant to the Veteran's claims. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the claims file the Veteran's treatment records from the VA facilities in and around Nashville, Tennessee, dated before July 2001, between June 2003 and June 2005, and after September 2006. All attempts to obtain these records must be documented in the claims file. If no such records exist, the claims file shall be documented accordingly. 2. Review the Veteran's claims file and undertake any additional development indicated. This may include obtaining and associating with the claims file, after securing any required authorization, additional pertinent records identified by the Veteran during the course of this remand. This also may include providing a medical examination and/or obtaining a medical opinion with respect to one of more of the Veteran's claims, if necessary. 3. Then, readjudicate the Veteran's claims. If the benefits sought on appeal are not granted, the Veteran and his representative shall be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond. The appellant 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 (CONTINUED ON NEXT PAGE) action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ JONATHAN B. KRAMER 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).