Citation Nr: 1126174 Decision Date: 07/12/11 Archive Date: 07/19/11 DOCKET NO. 05-21 504A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for arthritis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Whitehead, Associate Counsel INTRODUCTION The Veteran had active service from November 1984 to September 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the above-referenced claim. In a December 2008 decision, the Board denied service connection for arthritis. Thereafter, the Veteran appealed the Board's denial of his claim to the United States Court of Appeals for Veterans Claims (Court). In November 2010, the Veteran and the Secretary of VA (the parties) filed a Joint Motion for Remand (Joint Motion). The Joint Motion moved for the Court to vacate and remand the December 2008 Board decision, as the parties determined that a remand was necessary in order for the Board to provide an adequate statement of reasons or bases as to whether VA complied with its duty to assist. In November 2010, the Court granted the parties' Joint Motion. 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. REMAND By way of background, the Veteran claims that his current arthritis, claimed as arthritis waist down, manifested itself during service. It is his contention that he was diagnosed with arthritis during service and that he was discharged due to arthritis. As noted above, the parties to the Joint Motion agree that the Veteran's claim should be remanded so that the Board could provide an adequate statement of reasons or bases whether VA complied with its duty to assist the Veteran in obtaining relevant records. Specifically, the parties note that the Veteran's DD 214 reflects that he was discharged from service due to a "physical disability with severance pay." However, service treatment records relating to his medical discharge have not been associated with the claims file. The parties highlight that his available service treatment records include an undated report of medical examination and an undated report of medical history, which both indicate that the Veteran was being examined for a medical evaluation board (MEB). However, the clinical results from any MEB examination were not included in these records and have not been associated with the claims file. As noted above, VA has a duty to assist the Veteran in the development of his claim. This duty includes making reasonable efforts to help him procure pertinent records. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c). Reasonable efforts to help the Veteran obtain records that are in Federal custody, such as service treatment records, consist of making as many requests as are necessary to obtain them. 38 U.S.C.A. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2). Such request may cease, however, when if it is determined that they do not exist or that further requests to obtain them would be futile. Id. In accordance with the JMR, the Board finds that a remand is necessary so that further development may be pursed to determine whether all of the Veteran's relevant service records have been associated with the claims. While the claims file includes numerous service treatment records, as noted above, it is unclear whether additional records exist related to a MEB examination. Moreover, the Veteran's service personnel records are currently not of record, records which may contain information regarding the reason for the Veteran's separation for a physical disability. Thus, the RO/AMC should endeavor to obtain the Veteran's outstanding service treatment and personnel records, as these records will prove beneficial in deciding the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall attempt to obtain and associate with the claims file any outstanding service treatment records that are currently not of record. In so doing, the RO/AMC must attempt to procure any service treatment records associated with or indicating that the Veteran underwent a medical evaluation board (MEB) during his military service. All attempts to obtain these records must be documented in the claims file. If no additional records exist, or they are otherwise unavailable, the claims file should be documented accordingly. 2. The RO/AMC shall attempt to obtain and associate with the claims file the Veteran's complete service personnel records. All attempts to obtain the records must be documented in the claims file. If no such records exist, or they are otherwise unavailable, the claims file should be documented accordingly. 3. Thereafter, the RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action is required. If further action is required, it shall be undertaken prior to further claims adjudication. 4. Following completion of the foregoing, the RO shall readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and provide an opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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. 2010). _________________________________________________ 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) (2010).