Citation Nr: 1323480 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 06-10 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a chronic respiratory disability, to include emphysema, chronic obstructive pulmonary disease (COPD), and pneumonia. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty in the United States Coast Guard from September 1963 to June 1977, and from November 1977 to March 1978. He had subsequent active duty service in the United States Army from October 1990 to March 1991. This matter is before the Board of Veterans' Appeals (the Board) on appeal of an April 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge at the Portland RO in September 2008. A hearing transcript is associated with the record. In February 2009, October 2011, April 2012, and January 2013 the Board remanded claim for additional evidentiary development. In accordance with the most recent remand decision, the RO obtained the requested outstanding pertinent treatment records and a VA medical opinion. The VA treatment records were uploaded to the Veteran's Virtual VA electronic claims file, which exists separate from the paper claims files. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issue on appeal. Notwithstanding, the record shows that the Roseburg VA treatment records obtained through CAPRI (Compensation and Pension Records Interchange) and located in the Virtual VA file were considered by the RO in the adjudication of the claim. See Supplemental Statement of the Case dated in May 2013. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND 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 (2012). Here, the AMC completed the development requested by the January 2013 remand and readjudication the Veteran's claim in a Supplemental Statement of the Case (SSOC) by the AMC in May 2013. The Veteran responded to the SSOC in May 2013, by indicated that he had more information or evidence to submit in support of his claim. In June 2013, the Board received a statement from the Veteran noting treatment at the Roseburg VA Medical Center and requesting VA obtain these medical records in support of his appeal. In view of the Veteran's comments suggesting the presence of additional VA treatment records pertinent to his claim coupled with VA's duty to assist, the Board is obligated to remand the case again to obtain any pertinent outstanding VA treatment records. In this regard, records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should obtain any pertinent outstanding medical records, to include all records of treatment from Roseburg VA Medical Center dated since April 2013. 2. The RO or the AMC should also undertake any other development it determines to be warranted. 3. Then, the RO or the AMC should readjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board for further appellate action. 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). _________________________________________________ DAVID L. WIGHT 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).