Citation Nr: 1317979 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 08-08 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen a claim for service connection for fibromyalgia; memory loss; pain in bilateral arms, legs, back, and neck; sinus disorder; skin disorder; and stomach disorders, to include as qualifying chronic disabilities under 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active service from May 1985 to May 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board notes that jurisdiction of this matter was initially under the RO located in Milwaukee, Wisconsin. In March 2005, it was transferred to the RO in Indianapolis, Indiana. Thereafter, in September 2006, jurisdiction was transferred to the RO located in Montgomery, Alabama. In September 2009 and January 2013, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. At the conclusion of the January 2013 hearing, the Board left the record open for 60 days so the Veteran could obtain additional evidence in support of his new and material evidence in claim. In April 2013, the Veteran submitted additional evidence in support of his psychiatric disorder claim, accompanied by a waiver of initial Agency of Original Jurisdiction (AOJ) review. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. 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 After review of the record, it has been determined that further evidentiary development is necessary before the Board can adjudicate the Veteran's claims. In May 2012, the RO rendered the following: a Supplemental Statement of the Case (SSOC) for the claim of entitlement service connection for a psychiatric disorder; and a Statement of the Case for the issue of whether new and material evidence has been received to reopen a claim for service connection for fibromyalgia, et. al., under 38 C.F.R. § 3.317. In these documents, the RO related that VA treatment records dated from April 2002 to November 2010 were reviewed electronically. These records include VA outpatient treatment records from the Jesse Brown VA Medical Center (VAMC) in Chicago, Illinois dated from April 2002 to February 2004; the Crown Point, Indiana VAMC from June 2002 to March 2003; the North Chicago, Illinois VAMC from June 2002 to June 2004; the Milwaukee, Wisconsin VAMC from April 2003 to November 2004; the Tuscaloosa, Alabama VAMC from May 2004 to May 2012; and the Birmingham, Alabama VAMC from March 2005 to November 2010. The Board has carefully reviewed the claims file and determined that physical copies of all of these electronic records are not in the claims file. Indeed, while VA treatment records dated from June 2002 to September 2003, July 2006 to January 2008, and November 2012 to March 2013 have been obtained and associated with the paper claims file, a review of the Veteran's claims folders and a search of the Veteran's Virtual VA electronic claims file shows that much, if not all, of the electronic records identified as reviewed by the RO have been associated with either file. Without access to these records, the Board is unable to undertake a de novo review of the Veteran's claims. Consequently, as the Veteran's VA treatment records are unavailable for the Board's review and as they might contain information relevant to the Veteran's claims on appeal, on remand, they must be secured and associated with the record. 38 C.F.R. § 3.159(c)(2), (c)(3) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992) (because VA is deemed to have constructive knowledge of all VA records and such records are considered evidence of record at the time a decision is made). Accordingly, the case is REMANDED for the following actions: 1. Obtain all of the Veteran's VA outpatient treatment records, to specifically include all pertinent treatment records from the Jesse Brown VAMC in Chicago, Illinois dated from April 2002 to February 2004; the Crown Point, Indiana VAMC from June 2002 to March 2003; the North Chicago, Illinois VAMC from June 2002 to June 2004; the Milwaukee, Wisconsin VAMC from April 2003 to November 2004; and the Tuscaloosa and Birmingham, Alabama VAMCs from May 2004 to May 2012 and March 2005 to November 2010. The RO/AMC shall also obtain and associate with the record any additional relevant VA medical records, or other records the Veteran may reasonably identify, that may have come into existence since the matter was last before the Agency of Original Jurisdiction (AOJ). If such records do not exist or are otherwise not available after reasonable efforts, such circumstances shall be fully documented in the claims file. 2. Thereafter, the issues on appeal should be readjudicated. Any additional development deemed necessary shall be undertaken for a full and fair adjudication. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of the case. 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). These claims 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). _________________________________________________ JONATHAN B. KRAMER 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).