Citation Nr: 1305059 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 10-25 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a higher rating for service connected anxiety disorder, currently rated as 50 percent disabling. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. C. Dale, Counsel INTRODUCTION The Veteran had active duty service from July 1944 to May 1946, including combat service in the European Theatre of Operations during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Cleveland, Ohio that denied a rating in excess of 30 percent for service connected anxiety disorder. Jurisdiction was subsequently transferred to the RO in Chicago, Illinois. In March 2010, the RO in Chicago, Illinois awarded a 50 percent rating for service connected anxiety disorder. As higher schedular ratings are available, the claim remains on appeal. AB v. Brown, 6 Vet. App. 35, 38- 39 (1993). The Veteran was afforded a November 2012 hearing before the undersigned. A transcript of the hearing is located in the Veteran's Virtual VA efolder. A review of the Virtual VA paperless claims processing system shows that VA treatment records from January 2010 to August 2012 are of record. The RO considered these updated VA treatment records in the August 2012 Supplemental Statement of the Case. In November 2012, the Veteran submitted additional evidence accompanied by a waiver of review by the agency of original jurisdiction (AOJ). The Board may consider this evidence in the first instance. 38 C.F.R. § 20.1304. 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 Unfortunately, it appears that there may be outstanding Vet Center treatment records. The Veteran had an informal hearing conference with a Decision Review Officer in December 2009. He reported having treatment at the Rockford Vet Center and submitted VA Form 21-4142 in December 2009 identifying treatment at the "Veteran's Out Reach Center" in Rockford, Illinois beginning in 2005 through the present. The RO sent two letters to the address listed by the Veteran, but did not receive a response. Further search efforts were not conducted. Notably, an internet search shows that an unrelated private business is currently located at the listed address on VA Form 21-4142. The VA Intranet shows the Rockford Vet Center being located at the following address: 7015 Rote Road, Suite 105 Rockford, IL 61107. A records request has not been sent to this address. The Rockford Vet Center treatment records identified in December 2009 are not currently associated with the claims folder. VA is deemed to have constructive knowledge of certain documents which are generated by VA agents or employees, including Vet Center records. 38 U.S.C.A. 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611 (1992). For records in Federal custody, VA is required to make as many requests as necessary to obtain the records and will only stop when it is determined the records are unavailable or that additional search actions would be futile. 38 C.F.R. § 3.159(c)(2). In order to comply with the regulations governing record requests from Federal custodians, additional efforts are necessary to locate the outstanding Rockford Vet Center treatment records as described below. Id. 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. Request all treatment records for the Veteran beginning in 2005 from the Vet Center in Rockford, Illinois at the following address: Rockford Vet Center 7015 Rote Road, Suite 105 Rockford, IL 61107 Make as many requests as necessary to locate these records or until it is certain further search efforts would be futile. Document all search efforts and, if the records are not available, produce a Formal Finding of Unavailability. If any records cannot be obtained, inform the Veteran of this fact, of the efforts that were made to obtain the records, and of any further development that will be undertaken. 2. Following the completion of the requested actions, the RO should then re-adjudicate the Veteran's claim. If the benefits on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. 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. 2012). _________________________________________________ J. A. MARKEY 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).