Citation Nr: 1324914 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 11-02 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for multiple sclerosis. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In May 2011, the Veteran testified before the undersigned at a hearing held at the RO. A transcript of the hearing is associated with the Veteran's claims file. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND At the May 2011 hearing, the Veteran indicated that she was currently being treated for multiple sclerosis at the VA Medical Center in Syracuse, New York and at the VA Outpatient Clinic in Rome, New York. A review of the record reflects VA treatment records dated through January 2009. 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, regardless of whether those records are physically in the claims file. See Bell v Derwinski, 2 Vet. App. 611, 613 (1992). As it does not appear that all VA treatment records for the Veteran have been associated with the record and made available for review, a remand is necessary to obtain any outstanding VA treatment records. In addition, the Veteran indicated that during service she was hospitalized in Charleston, South Carolina; Great Lakes, Illinois; Bainbridge, Maryland; and Orlando, Florida. Service treatment records include hospital records from Charleston, South Carolina and Orlando, Florida. The record does not show that the RO submitted a specific request for military hospital records. Therefore, the Board finds remand is warranted to attempt to obtain any outstanding hospital records pertaining to in-service hospitalization for the Veteran's symptoms. Finally, in June 2011, the Veteran's representative submitted a letter from Dr. C. Mihai, which comments on the nature and etiology of the Veteran's reported in-service symptoms. Neither the Veteran nor her representative has submitted a waiver of RO consideration of this evidence. See 38 C.F.R. § 20.1304 (2012). The Agency of Original Jurisdiction (AOJ) has not considered this evidence in the first instance, and the Board is prohibited from doing so without a waiver of such consideration. Accordingly, the Veteran's claim must be remanded to the AOJ for re-adjudication of the Veteran's claim in a Supplemental Statement of the Case. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record any outstanding VA treatment records from the VA Outpatient Clinic in Rome, New York, and the VA Medical Center in Syracuse, New York, to specifically include records dated since January 2009. All actions to obtain the requested records should be documented fully in the claims file. If any cannot be located or no such records exist, a memorandum of unavailability should be associated with the claims file, and the Veteran and her representative should be provided a copy of the memorandum. 2. Contact the National Archives and Records Administration and/or any other appropriate records repository as deemed necessary for military hospital records and request any hospital reports pertaining to the in-service evaluation and treatment of the Veteran in Charleston, South Carolina; Great Lakes, Illinois; Bainbridge, Maryland; and Orlando, Florida. Efforts to procure the relevant records should continue until either the records are received or until specific information that the records sought do not exist or that further efforts to obtain them would be futile is received. Copies of all requests/responses should be associated with the claims file. If any cannot be located or no such records exist, a memorandum of unavailability should be associated with the claims file, and the Veteran and her representative should be provided a copy of the memorandum. 3. Thereafter, re-adjudicate the Veteran's claim of entitlement to service connection for multiple sclerosis. If any benefit sought on appeal remains denied, issue the Veteran and her representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review. The Veteran 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). _________________________________________________ L. M. BARNARD 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).