Citation Nr: 1328040 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-22 222 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for claimed leukemia, to include as secondary to in-service exposure to herbicides or asbestos. 2. Entitlement to service connection for claimed prostate cancer, to include as secondary to in-service exposure to herbicides or asbestos. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran had active service from August 1960 to September 1963 and from September 1964 to March 1967. This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision by the RO. The Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge in September 2010. A transcript of the hearing has been associated with the Veteran's VA claims folder. In a January 2012 decision, the Board denied the Veteran's claim of service connection for leukemia. The issue of service connection for prostate cancer was remanded for additional development. That development has been conducted and the case returned to the Board. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in December 2012, the Veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Remand. In a December 2012 Order, the Court vacated the Board's January 2012 decision and remanded the matter for readjudication in light of the Joint Motion. The appeal is being remanded directly to the RO. VA will notify the Veteran if further action is required on his part. REMAND In the December 2012 Joint Motion, the parties found that VA "erred in not obtaining VA treatment records identified by [the Veteran] which were potentially relevant to his claim, in accordance with its statutory duty to assist." See the Joint Motion, page 2. Specifically, the parties noted that, in a December 2008 statement, the Veteran reported receiving treatment at the VA Medical Center (VAMC) in Pittsburgh, Pennsylvania. During the September 2010 hearing, the Veteran testified that he had received treatment for his leukemia at the VA Medical Center in Oakland. In the Joint Motion, the parties observed that "there is no evidence of record that VA ever requested medical records" from these VAMC in Pittsburgh or Oakland. See the Joint Motion, page 2. Accordingly, because the VA records identified by the Veteran may be relevant to the issues on appeal, a remand is necessary to obtain such records. See 38 U.S.C.A. § 5103A(c) (West 2002); 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 pertinent). In the Joint Motion, the parties also acknowledged that, while the Veteran indicated that he had received private treatment for his leukemia, he had not sufficiently identified the name of the treating physician or the time period surrounding this treatment. The parties therefore stated that "VA should contact [the Veteran] in writing" and request that he authorize VA to obtain any private medical record related to his leukemia. Accordingly, these issues are REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and request that he provide information referable to all VA and non-VA treatment he has received for the issues on appeal. After securing any necessary authorization for release of information, the RO should obtain copies of any outstanding records from any identified health care provider. The Board is particularly interested in any treatment the Veteran has received at the VAMCs in Oakland and Pittsburgh, Pennsylvania. The Veteran should be asked to identify the names and dates of all private treatment he has received for his leukemia. All efforts to obtain such records should be documented in the claims folder, and all available records should be associated with the Veteran's VA claims folder. 2. When the actions requested have been completed, undertake any other indicated development, to include a new VA examination, if deemed by the RO/AMC to be appropriate under the law. 3. After completing all indicated development, the RO should readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided with a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 or by the Court 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). _________________________________________________ STEPHEN L. WILKINS 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).