Citation Nr: 1321435	
Decision Date: 07/03/13    Archive Date: 07/12/13

DOCKET NO.  07-31 074	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for residuals of a traumatic brain injury (TBI), to include a seizure disorder/epilepsy.

2.  Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Peters, Associate Counsel



INTRODUCTION

The Veteran had active duty service from December 1983 to November 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the above issues in pertinent part.  The Veteran timely appealed those issues.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

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


REMAND

In several statements in 2012, the Veteran indicated that he had recently moved to West Virginia and was hospitalized at the Elkins and Morgantown VA Medical Centers.  Those records are not in the claims file and it does not appear that any attempts to obtain those records have been made.  

Additionally, in those statements, the Veteran indicated that he was on Florida Medicaid and was seeing a licensed family physician, prior to moving, as well as seeking treatment with the Wakulla Urgent Care and Diagnostic Center; those records are also are not in the claims file.  

Accordingly, the Board finds that this case must be remanded at this time in order to attempt to obtain these records.  See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 

The Veteran's TDIU claim is intertwined with the remanded claim of service connection for TBI residuals, and therefore is also remanded at this time.  See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Obtain any relevant VA treatment records from the Elkins and Morgantown VA Medical Centers, or any other VA medical facility that may have treated the Veteran, which are not already of record and associate those documents with the claims file.

2.  Ask the Veteran to identify any private treatment that he may have had for his seizure disorder or any other residual of his TBI, which is not already of record, to include Wakulla Urgent Care and an as-of-yet unnamed private physician in Florida.  After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file.  If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf.

3.  Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claims of service connection for residuals of a TBI, to include a seizure disorder/epilepsy, and entitlement to TDIU.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter 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).



_________________________________________________
THOMAS J. DANNAHER
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).