Citation Nr: 1313679	
Decision Date: 04/24/13    Archive Date: 05/03/13

DOCKET NO.  08-32 502	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an evaluation in excess of 10 percent for degenerative disc disease of the cervical spine (hereinafter cervical spine disability).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Peters, Associate Counsel

INTRODUCTION

The Veteran had active duty service from June 1973 to September 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied an increased evaluation for his cervical spine disability.  The Veteran timely appealed that decision.

The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in April 2011; a transcript of that hearing is associated with the claims file.

This case was initially before the Board in August 2011, when it was remanded for further development.  That development having been completed, the case has been returned to the Board for further appellate review at this time.  Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

In the previous remand, the Board ordered that VA treatment records from the Orlando VA Medical Center be obtained.  VA records from that facility from October 2009 to July 2011 were associated with the claims file.  However, in an October 13, 2009 administrative note, it was noted that the following entries were currently being administratively transferred to the Orlando Vista System and that previous medical record documentation resided in the Tampa Vista System or the North Florida/South Georgia Vista System.  "For continuity of care, the below documentation was transcribed from" either of those other two Vista Systems.  

The Board notes that the only other previous VA treatment records in the claims file consist of two treatment record dated in October 2006 and April 2008, and spanning three pages.  

Potentially relevant records in this case would span from December 2006 through the present.  The Board notes that VA records from 2009 through 2011 appear to be associated with the claims file, but that potentially relevant VA records from 2006 through 2009; additionally, any ongoing evidence since 2011 would also now appear to be relevant in the event of a remand.  As it appears that there are potentially relevant VA records that have not yet been obtained, the Board finds that a remand is necessary at this time.  See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); 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 Orlando, Tampa, or North Florida/South Georgia VA Medical Centers, or any other VA medical facilities that may have treated the Veteran, since December 2006 and associate those documents with the claims file.

The RO/AMC should document all attempts to obtain any VA records and must document in the claims file any searches.  If attempts to obtain those records were fruitless and future attempts would be futile, such should be so noted in the claims file and the Veteran so notified.

2.  Following the above development, the RO/AMC should review the claims file and readjudicate the Veteran's claim for increased evaluation of cervical spine disability.  If the benefits sought on appeal remain 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).