Citation Nr: 1320700 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 04-12 196A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a cervical spine disorder, to include a congenital fusion of the cervical spine. 2. Entitlement to service connection for a lumbar spine disorder, to include L5 spondylosis with spondylolisthesis, and to include as secondary to service-connected residuals of a left ankle fracture. 3. Entitlement to service connection for migraine headaches. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1976 to July 1979 and December 1983 to December 1987, with active duty for training (ACDUTRA) from April 29, 1975 to August 29, 1975, and with additional service in the Reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied the Veteran's August 2002 claims for entitlement to service connection for a cervical spine disorder, a lumbar spine disorder, and headaches. In June 2011, the Veteran was scheduled for a Board hearing at the local RO, but the Veteran did not appear and did not provide any explanation for his absence. Accordingly, his request for a hearing is considered withdrawn, and the Board may proceed with review of the claims. 38 C.F.R. § 20.704(d) (2012). In September 2011 and January 2013 decisions, the Board remanded the claims for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Pursuant to the January 2013 Board remand instructions, the RO/AMC was instructed to obtain written authorization from the Veteran and obtain and associate with the claims folder copies of all treatment records of the Veteran from St. Luke's Hospital, Perimeter North Family Medical Center, Joan Glancy Medical Center, E. Whitehead, M.D., Progressive Physical Therapy, and Georgia Neurological Surgery. Request letters were sent to each facility in March 2013 and April 2013, and the Veteran was informed of the March 2013 request letters sent in an April 2013 notice letter. In April 2013, negative responses from St. Luke's Hospital and Perimeter North Family Medical Center were received and documented in the physical claims file. Treatment records dated July 2002 from Joan Glancy Medical Center through the Gwinnett Hospital System were received and associated with the physical claims file in April 2013. No response has been received, nor documentation of negative results has been documented in the record from (1) E. Whitehead, M.D., (2) Progressive Physical Therapy, and (3) Georgia Neurological Surgery. In addition, neither the Veteran nor his representative have been informed of the lack of development from these facilities, to include the May 2013 supplemental statement of the case (SSOC). As a result, the Board finds that the Veteran and his representative should be apprised of the fact that the requested information is unavailable and given the opportunity to submit the requested information as required under 38 U.S.C.A. § 5103A(c) and 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran and his representative notice that the requested information from (1) E. Whitehead, M.D., (2) Progressive Physical Therapy, and (3) Georgia Neurological Surgery is unavailable, and give them the opportunity to submit the requested information as required under 38 U.S.C.A. § 5103A(c) and 38 C.F.R. § 3.159(c). 2. Thereafter, the issues on appeal should be readjudicated, to include review of the VA outpatient treatment records from March 2010 to April 2013 associated with the file on the "Virtual VA" system since the last May 2013 SSOC. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran and representative have the right to submit additional evidence and argument on the 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 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). _________________________________________________ T. D. JONES Acting 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).