Citation Nr: 1301052 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 04-09 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been submitted to reopen the claim for service connection for a low back disorder. REPRESENTATION Appellant represented by: Jeany Mark, Attorney-at-law ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO), which, determined, in part, that the Veteran had not submitted new and material evidence to reopen the claim previously denied for service connection for a low back disorder. The Board denied the claim in September 2005. The Veteran appealed the Board's September 2005 decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision dated May 11, 2007, the Court vacated and remanded the Board's decision. In September 2008, the Board remanded the claim for further proceedings consistent with its decision. In July 2010, the Board again denied the claim for whether new and material evidence had been submitted to reopen the claim for service connection for a low back disorder. The Veteran appealed the Board's July 2010 decision to the Court. In a Memorandum Decision dated April 19, 2012, the Court vacated and remanded the Board's decision for further proceedings consistent with its decision. 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 The Veteran has appealed the Board's July 2010 decision. He asserts that the Board failed to adequately explain its determination that VA fulfilled its duty to assist in this case. The Veteran maintains that VA failed to fulfill its duty to assist because it did not ensure that all of C.T.C., MD's medical records were obtained in connection with the claim. The Veteran asserts that he submitted to VA an authorization and consent form in January 2009, to obtain records from Dr. C.T.C. dated from September 2008 to January 2009. The authorization and consent form had two medical providers listed, and VA sent him two new blank authorization and consent forms to complete, as two providers could not be on the same form. The Veteran later contacted Dr. C.T.C., and had him submit his medical records to VA. He acknowledges that the record contains medical records from Dr. C.T.C., but none dated in September 2008. The records submitted to VA by Dr. C.T.C. were dated from October 2008 to May 2009. VA maintained that since the Veteran had Dr. C.T.C. submit the records, they had no responsibility to inform him that there were no records dated from September 2008 submitted in connection with the claim. It was VA's assertion that based on the records received by VA from Dr. C.T.C., there is no indication that the records were incomplete. The Court disagreed, stating that this explanation of VA's behavior does not address the Veteran's argument, which is that VA had a duty to assist him by determining whether there were additional records that should be retrieved, and that the VA therein failed in its duty. Further, the consent and authorization forms signed by the Veteran have never been discussed by the RO or the Board. According to the Court, the form may reveal that the Veteran was attempting to authorize VA to obtain records from Dr. C.T.C. dating to September 2008, and those records not obtained, may have affected the Board's duty to assist analysis. Though the Board is not required to discuss all of the evidence in the record, according to the Court, the authorization and consent form appears on its face to be relevant, material, and favorable to the Veteran's claim, and it should have been discussed. Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (stating that the Board must provide an adequate statement of the reasons or bases "for its rejection of any material evidence favorable to the claimant"); see also Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001) (finding that the Board is not required to discuss all of the evidence of record but must discuss all relevant evidence). The Court also noted that the Board's failure to specifically discuss subsequent correspondence between the Veteran and VA that may further explain whether VA adequately fulfilled its duty to assist the Veteran in obtaining Dr. C.T.C. records, renders its statements of reasons and bases inadequate. See 38 U.S.C.A. § 7104(d)(1). Accordingly, the case is REMANDED for the following action: 1. After obtaining an appropriate consent and authorization form from the Veteran, the RO/AMC should submit such form to Dr. C.T.C. and attempt to obtain any of the Veteran's medical records from him pertinent to this claim, specifically to include medical records of September 2008, and associate those records with the claims folder. The RO/AMC should request that Dr. C.T.C. indicate in writing if there are no records related to this claim from September 2008. 2. Obtain and associate with the claims file any new medical evidence, from VA or otherwise, that may have come into existence since the time the claims file was last updated by the RO/AMC. 3. After obtaining the aforementioned medical records, if any, review the claim in connection with those records and any other evidence pertinent to the claim. Then, readjudicate whether new and material evidence has been submitted to reopen the claim for service connection for a low back disorder. If the benefit sought on appeal is not granted, the Veteran and his attorney should be provided with an appropriate Supplemental Statement of the Case, to include the appropriate laws and regulations, and they should be given an opportunity to respond. The Veteran 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. 2012). _________________________________________________ F. JUDGE FLOWERS 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) (2012).