Citation Nr: 1318565	
Decision Date: 06/06/13    Archive Date: 06/11/13

DOCKET NO.  09-35 968	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an initial disability evaluation in excess of 10 percent for traumatic brain injury with mixed tension headaches.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission 


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel



INTRODUCTION

The Veteran served on active duty in the United States Army from May 1995 to May 1998, January 2003 to November 2003, and June 2004 to December 2005.

This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted the Veteran's claim for service connection for traumatic brain injury with mixed tension headaches and assigned a 10 percent disability evaluation.  The Veteran has since moved to Florida, and jurisdiction of his claims was transferred to the St. Petersburg, Florida RO.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required.


REMAND

The Veteran seeks an initial disability evaluation in excess of 10 percent for traumatic brain injury with mixed tension headaches.

In July 2012, the remanded for additional evidentiary development.  Specifically, the Board instructed that efforts must be undertaken to obtain those clinical records associated with the Brooke Army Medical Center neuropsychological testing of the Veteran.  These records were reported to be housed at Wilford Hall Medical Center in San Antonio, Texas.

In February 2013, the AMC requested authorization for release of these records from the Veteran, but no response was received and the AMC continued the denial of the Veteran's claim.  The claim was readjudicated with no further AMC/RO action to obtain the records identified by the Veteran and sought by the Board.

VA's duty to assist includes obtaining records in Federal custody and making reasonable efforts to obtain those outstanding medical records not in Federal custody.  38 C.F.R. § 3.159.  Here, the records sought for consideration are records in Federal custody.  It is noted that Wilford Hall Medical Center is a United States Air Force clinic located on the grounds of San Antonio's Lackland Air Force Base.  Authorization for release of these records is not required since they are in Federal custody and involve a claim for federally administered benefits.

Therefore, remand is again necessary to ensure that VA has met its duty to assist the Veteran.  A remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand.  Where remand orders of the Board are not complied with, the Board errs in failing to insure compliance.  Stegall v. West, 11 Vet. App. 268 (1998).

Accordingly, the case is REMANDED for the following action:

1.  The RO or AMC should obtain all neuropsychological testing records from Wilford Hall Medical Center in San Antonio, Texas.  All efforts to locate these records should be documented in the claims folder.

If the RO is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence.  38 U.S.C.A. § 5103A (b) (2); 38 C.F.R. § 3.159(e) (1).

2.  After completing the above action and any other development deemed necessary as a result of this remand, the RO or AMC should readjudicate the Veteran's claim.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

The Veteran 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).



_________________________________________________
Bethany L. Buck
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).