Citation Nr: 1301869 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 06-25 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial disability evaluation in excess of 10 percent for the low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant had active service from April 1999 to October 2003. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision issued by the above Regional Office (RO) of the Department of Veterans Affairs (VA) that, in part, granted service connection for mechanical low back pain and assigned a 10 percent evaluation for that disability. The Veteran has appealed the initial rating assigned for the low back disability when service connection was granted. The appellant is, in effect, asking for a higher rating effective from the date service connection was granted. Consequently, the Board will consider the entire time period in question, from the original grant of service connection to the present, for the disability on appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). In addition to the paper claims file, there is an electronic file (Virtual VA) associated with the Veteran's claim. Virtual VA does not currently contain any evidence pertinent to the Veteran's claim. 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's review of the record reveals that further development is required before the issue on appeal is decided. In January 2012, the appellant submitted a VA Form 21-4138 in which he stated that he had recently been in receipt of chiropractic treatment for his low back from a private chiropractor. The RO did not attempt to obtain those records while the case was in remand status. VA is therefore on notice of records that may be supportive of the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). In addition, records generated by federal 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). The originating agency should undertake appropriate development to obtain all outstanding pertinent treatment records (private and VA). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain a copy of all outstanding treatment records pertinent to the Veteran's low back claim. Of particular interest are the records from Murphy Chiropractic in New Castle, PA, and any VA records pertaining to treatment since July 2011, as well as any other pertinent records identified by the Veteran. Those records not already associated with the claims files should be obtained and associated with the claims file. All attempts to procure records must be documented in the file. If the RO or the AMC cannot obtain records identified by the Veteran, a notation to that effect must be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Undertake any other indicated development. 3. Then, readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide a supplemental statement of the case (SSOC) to the Veteran and his representative and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See 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). _________________________________________________ Shane A. Durkin 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).