Citation Nr: 1320008 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 08-26 444 A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a lumbosacral disability. 2. Entitlement to service connection for sleep apnea, including as secondary to a service-connected anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1967 to May 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Cleveland, Ohio RO. In April 2013, a videoconference hearing was held before the undersigned; a transcript of the hearing is included in the record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claims. See 38 C.F.R. § 3.159 (2012). Upon review of the claims file, there are several outstanding private treatment records that are likely pertinent to the matters on appeal that must be secured. At the April 2013 hearing, the Veteran testified that he had received treatment for both disabilities on appeal from the following private providers: a Grand Forks, North Dakota hospital (in November 1967), a Goose Bay, Canada hospital (in late 1969), a Grand Falls, Canada hospital (in February 1970), and from private Drs. Ahrens, Tartaglia, and Hejeebu. The Board notes that a review of the claims file (including Virtual VA) revealed that treatment records from Dr. Hejeebu have already been obtained by the RO. Additionally, a March 2006 statement from Grand Falls General Hospital in New Brunswick, Canada indicates that there are no available files for the Veteran; it was noted that he may have had a chart there at one time, but the records for those years (1970-1971) had been destroyed, as outpatient/emergency records can be destroyed after 10 years. Therefore, further development to obtain records from those sources is not indicated. The Veteran submitted some records from Dr. Tartaglia; however, a review of the claims file found that the RO has not attempted to obtain the complete treatment records from this provider. The Veteran is advised that a governing regulation provides that when evidence requested in connection with a claim for VA benefits is not received within a year of the request, the claim is to be considered abandoned. 38 C.F.R. § 3.158(a). He is further advised that ultimately it is his responsibility to ensure that private records sought are received. Finally, a review of the claims file (including Virtual VA) found that the most recent VA treatment records in evidence are from March 2012. Records of any VA treatment the Veteran may have received for the disabilities at issue since are constructively of record, and must be secured. The Board notes that Virtual VA contains treatment records from as recently as November 2011 at the Cleveland, Ohio VA Medical Center and as recently as March 2012 at the Ann Arbor, Michigan VA Medical Center. Therefore, the RO should obtain updated treatment records from both locations. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the Veteran to submit a new authorization for VA to secure the complete clinical records of all non-VA treatment he has received for the disabilities at issue, including records from Drs. Ahrens and Tartaglia and from the as-yet-unspecified hospitals in Grand Forks and Goose Bay. He must be afforded the time provided by regulation, i.e., one year, to respond. The RO should secure for the record copies of complete records from all sources cited. If he does not respond/provide the releases sought, these claims must be processed further under 38 C.F.R. § 3.158(a). 2. The RO should secure for the record copies of the complete updated clinical records of any VA treatment the Veteran has received for the disabilities at issue. 3. After the above development is completed (and only if the claims are not processed under 38 C.F.R. § 3.158(a)), the RO should arrange for any additional development needed in light of the records received, including (if necessary) a medical examination/examinations of the Veteran to determine the nature and likely etiology of his claimed disability/disabilities. 4. The RO should then readjudicate the claims. If either remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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 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).