Citation Nr: 1320110 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 07-22 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to May 1970, with subsequent service in the Kentucky Air National Guard, to include active duty from November 2003 to April 2004. This claim is before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied the benefit sought on appeal. In March 2008, the Veteran presented oral testimony in support of his claim at a hearing, held at the RO, before a Decision Review Officer (DRO). A transcript of the March 2008 hearing is of record. This claim was previously before the Board in March 2011, when it was remanded for further evidentiary development. The Board's prior remand directives have been substantially completed, and the Veteran's claim has been returned to the Board. 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 After review of the complete record, the Board concludes that additional development is necessary in order for VA to fulfill its duty to assist the Veteran. The Veteran's claim to establish service connection for a low back disability was certified to the Board in January 2010, and the Veteran's claims file was transferred from the RO to the Board in March 2010. Since that time, the Veteran has filed additional claims for VA disability benefits. It appears that, in an effort to expeditiously process the Veteran's other claims while his claims file remained with the Board and the AMC in connection with the present appeal, a temporary folder was created and maintained at the RO. Unfortunately, documents associated with this temporary file are not associated with either the claims file or Virtual VA file, and thus, the Board is without the benefit of the complete record for review at this time. Further, it appears that there are reasonably identified private treatment records which may be pertinent to the Veteran's claim which are not presently associated with the record. First, a May 2011 VA examination report reflects that the Veteran reported he had received private chiropractic treatment for low back disability after his separation from service in April 2004. The record does not reflect that any attempt has been made to obtain these records, to include requesting that the Veteran identify the chiropractor and dates of treatment, and provide authorization for release of such treatment records. Second, as noted in the March 2011 Board remand, a March 2007 VA MRI report referenced private treatment for low back pain at St. Catherine Hospital emergency room secondary to a motor vehicle accident. The Board directed the RO/AMC to obtain these records, if authorized by the Veteran. In April 2011, the AMC sent the Veteran a notice letter with an attached VA Form 21-4142 (Authorization and Consent to Release Information), instructing that such be completed with respect to St. Catherine Hospital and submitted to VA. It does not appear that the Veteran responded to this request. In light of the above as well as the forthcoming changes to the 38 U.S.C.A. § 5103A (2)(B), the RO/AMC must make two attempts to obtain the private chiropractic records as well as a further attempt to obtain the identified and pertinent private treatment records from St. Catherine Hospital or make a formal findings that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). Accordingly, the case is REMANDED for the following actions: 1. Associate any temporary file, maintained at the RO, with the Veteran's VA claims file. 2. Contact the Veteran and request that he complete and submit to VA proper authorization for release to VA of all records of private treatment at St. Catherine Hospital in East Chicago, Indiana, including those related to a motor vehicle accident in March 2007, and from the private chiropractor who treated his low back disability after separation from service. After receiving the completed authorizations for release, undertake all appropriate efforts to attempt to obtain these identified records. In light of the forthcoming changes to the 38 U.S.C.A. § 5103A(2)(B), the RO/AMC must make two attempts for the relevant private treatment records or make a formal findings that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts with respect to this directive should be associated with the claims file. 3. Undertake any additional development which reasonably flows from a review of the complete record (claims file, Virtual VA file and temporary file), to include scheduling the Veteran for an additional VA examination, if warranted. 4. Thereafter, readjudicate the issue on appeal in light of all of the evidence of record. If the benefit sought is not granted to the fullest extent, issue a Supplemental Statement of the Case and afford the Veteran and his representative an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration. The Veteran 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 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). _________________________________________________ U. R. POWELL 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).