Citation Nr: 1309306	
Decision Date: 03/19/13    Archive Date: 04/01/13

DOCKET NO.  06-17 327	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to an evaluation in excess of 10 percent for gastritis.


REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Attorney at Law


ATTORNEY FOR THE BOARD

M. Peters, Associate Counsel



INTRODUCTION

The Veteran had active duty service from October 1980 to March 1981.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  

This case was initially before the Board in June 2010 when it was remanded for further development.  It was returned to the Board in February 2012, at which time an evaluation in excess of 10 percent for gastritis was denied.  The Veteran timely appealed that denial to the United States Court of Appeals for Veterans Claims (Court).  During the pendency of that appeal before the Court, the Veteran and the Secretary of the Department of Veterans Affairs agreed to jointly remand the case back to the Board for further development.  The Court vacated and remanded the case back to the Board in a September 2012 Court order.  The case has been returned to the Board at this time in compliance with that Court order and the September 2012 Joint Motion for Remand.

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 Joint Motion for Remand notes that VA failed in its duty to assist the Veteran in obtaining VA treatment records, particularly from the Hattiesburg Community Outpatient Clinic (CBOC).  Therefore, at this time, the Board finds that a remand is necessary in order to assure compliance with the Joint Motion and that attempts to obtain any outstanding VA treatment records can be made.  Any ongoing private treatment records should also be obtained.  See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); 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). 

Accordingly, the case is REMANDED for the following action:

1.  Obtain any relevant VA treatment records from the Jackson VA Medical Center, Hattiesburg CBOC, or any other VA medical facility that may have treated the Veteran, since May 2006 and associate those documents with the claims file.

2.  Ask the Veteran to identify any private treatment that he may have received for his gastritis, which is not currently of record.  After securing the necessary release forms, attempt to obtain and associate those identified records with the claims file.  If records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf.

3.  Following the above development, the RO/AMC should review the claims file and readjudicate the Veteran's claim for increased evaluation of his gastritis.  If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.

The appellant 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 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).