Citation Nr: 1305906 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 08-10 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1970 to April 1972 and had subsequent Reserve service. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). In August 2010, a video-conference hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. In September 2010 and June 2012, the Board remanded the case for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND As the action ordered in the June 2012 remand has not been completed, and the evidence remains inadequate to properly address the matter on appeal, a remand to secure compliance with the previous remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). Specifically, the Board previously noted that pertinent (and perhaps critical) evidence was not associated with the record. As was noted in the September 2010 remand, private treatment records note a past medical history of back surgery in 1992, and re-injury in 1996. The remand instructed that the Veteran be requested to provide a chronological listing of all treatment providers with sufficient identifying information to enable the AMC to secure all outstanding treatment records. However, a September 2010 letter following this remand requested only that the Veteran provide releases to enable the AMC to secure outstanding records from Drs. J. G. and J. H. A chronological listing of providers, as instructed by the September 2010 remand, was not requested. The Veteran failed to respond. A subsequent, February 2011, letter asked the Veteran to provide a chronological listing of all providers, and the releases needed to secure outstanding treatment records. In response he provided a signed VA Form 21-4142 for Dr. J. H. He did not identify which provider performed the 1992 surgery, or treated the 1996 re-injury. He did not provide a chronological summary identifying all the providers of treatment and/or evaluation for his back disability since his separation from service, and he did not provide additional releases to obtain outstanding treatment records. The AMC did not follow-up. [Regarding the VA Form 21-4142 for Dr. J. H., the AMC did not attempt to use it to secure any further records of Dr. J. H. (the Veteran had previously advised that he was treated by Dr. J. H. since 1986; the only records secured were for the years 2003 to 2006)]. Based on this incomplete record, the AMC reajudicated the claim on the merits, and returned the case to the Board. As the record remained incomplete, the case was again remanded in June 2012. Pursuant to the Board's remand, an August 2012 letter from the AMC asked the Veteran to identify all providers of evaluation and/or treatment he has received for his back since his separation from service, specifically including (1) the complete records from Dr. J. H. (at all locations) prior to 2003; (2) all records from Trinity Clinic in Tyler, Texas; (3) the complete records of pre-surgery consultation, surgery, and all follow-up associated with the Veteran's 1992 back surgery; (4) the complete records of the treatment the Veteran received in connection with his 1996 back injury; and (5) records of any other treatment he received for his back since separation from service. He was also reminded of the provisions of 38 C.F.R. § 3.158 (a), which afford a one year period for response. He has not yet responded. The one year period for response has not lapsed. The June 2012 remand also directed the AMC to confirm with Trinity Clinic and Dr. J. H. when the Veteran became their patient (and whether he was their patient in 1986, as alleged). The AMC was also to obtain confirmation/certification that treatment records from 1986 were available. The AMC did not undertake this development as instructed (which would have entailed seeking releases from the Veteran). Once again, corrective action is needed. Because the action ordered in the Board's previous remands has not been completed, the matter must be again be remanded for compliance. The case is REMANDED for the following: 1. The AMC/RO must ask the Veteran to provide an outline identifying all private providers of treatment and/or evaluation he has received for his back, since separation from service(i.e., a chronological listing with names and locations of all providers and dates of treatment/evaluation), specifically including (1) the complete records from Dr. J. H. (at all locations) prior to 2003; (2) all records from Trinity Clinic in Tyler, Texas; (3) the complete records of pre-surgery consultation, surgery, and all follow-up associated with the Veteran's 1992 back surgery; (4) the complete records of the treatment the Veteran received in connection with his 1996 back injury; and (5) records of any other treatment he received for his back since separation from service. The AMC/RO must inform the Veteran it is his responsibility to provide properly executed releases (as all previous releases have expired) to enable the AMC/RO to secure the records of any private providers identified. If the Veteran responds with complete information and releases, the AMC/RO must secure for the record copies of complete clinical records of all treatment identified (those not already associated with the claims file). If he responds with incomplete information, the AMC/RO should follow-up, advise him of what more is needed, and afford him the opportunity to supplement his submissions. The AMC/RO must inform the Veteran he has the remainder of the year period from August 12, 2012 to respond. 2. With authorizations from the Veteran, the AMC/RO must ask Trinity Clinic and Dr. J. H. to confirm when the Veteran first became their patient, whether or not he was their patient in 1986 (as alleged), and whether the records provided encompass complete records of all evaluation and treatment they provided the Veteran for his back disability (and if not explain why the further records were not provided). The AMC/RO must secure for the record copies of complete clinical records of all treatment identified (those not already associated with the claims file) or obtain confirmation/certification that such records are unavailable (with explanation why that is so). If the results of this development suggest that there are additional pertinent and outstanding treatment records, the AMC/RO must arrange for development for such records. If the AMC/RO learns that the Veteran was not a patient of Trinity Clinic or Dr. J. H. beginning in 1986, or that records from such time are unavailable, a formal finding to that effect must be included in the claims file. 3. Following the above development, the AMC/RO should proceed with all further necessary development, including securing the identified records and arranging for any further development suggested by such records, such as arranging for an examination or securing a medical opinion. 4. The AMC/RO should then (after August 13, 2013, if the Veteran does not respond with the identifying information and releases, in which case the readjudication must be under 38 C.F.R. § 3.158(a) ) readjudicate the claim. If it remains denied, the AMC should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ George R. Senyk 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).