Citation Nr: 1301228 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 12-18 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for residuals of brain cancer, to include as due to undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1983 to February 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In November 2012, the Veteran provided testimony at a hearing before the Board. A transcript of that proceeding is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Board finds that further development is necessary prior to final adjudication of the Veteran's claim. The record reflects that there are outstanding VA medical records which may be pertinent to the Veteran's claim on appeal. In this regard, a November 2010 RO memorandum indicates that VA treatment records from the VA Medical Center (VAMC) in New York dated April to September 2010 were available but too excessive in volume for printing. While some VAMC New York records from this timeframe are associated with the claims file, to include the April 2010 VAMC Brooklyn surgery records, these records appear to be incomplete. On checking Virtual VA system, these records were not part of the virtual claims file. Moreover, the Veteran testified at the hearing that she spoke to her surgeon prior to her surgery, and the surgeon indicated that it was possible that the tumor had been growing since 1991. Any written opinion or other notations provided in this regard, if available, could be supportive of the Veteran's claim. In addition, a review of the Veteran's post-surgery medical records shows that she underwent rehabilitation at the VAMC in Lebanon, Pennsylvania from April to June 2010. The record currently does not include these VA treatment records. In light of the above considerations, any outstanding VA treatment records pertinent to the claim should be obtained and associated with the claims file on remand. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The record also reflects that the Veteran was awarded disability benefits by the Social Security Administration beginning in 2010. The records upon which that award was based could be supportive of the Veteran's claim. Therefore, further development to obtain these records is also in order. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should undertake appropriate development to obtain copies of any outstanding treatment records (either electronically in Virtual VA or in paper format) pertinent to the Veteran's claim, to include VAMC New York (VA New York Harbor Healthcare System) treatment records from April to September 2010 and VAMC Lebanon treatment records from April to June 2010. 2. The RO/AMC should also undertake appropriate development to obtain a copy of the SSA decision awarding the Veteran disability benefits in 2010, the records upon which the decision was based, and records associated with any later disability determinations for the Veteran. 3. The RO/AMC should undertake any other indicated development as a result of any additional evidence received, to include obtaining a VA medical opinion. 4. Then, the RO/AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and her representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. 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). _________________________________________________ CHERYL L. MASON 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).