Citation Nr: 1328435 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 06-07 150A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen a claim for service connection for a low back disability. 3. Entitlement to service connection for deep venous thrombosis. ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to November 1968. This case was previously before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded by the Board in June 2013 to schedule the Veteran for a videoconference hearing before a Veterans Law Judge pursuant to the provisions of 38 U.S.C.A. § 7107(e). The Veteran was scheduled for such a hearing in August in 2013 but failed to report. [The July 2013 letter notifying the Veteran of this hearing was not retuned as undeliverable and reflected, after his prior address was crossed out, his most recent address; as such, it does not appear that this failure to report was based on not being notified of this hearing. The Veteran has not asserted that he did not receive notice of this hearing or otherwise submit any evidence to rebut the presumption that the letter was received. See YT v. Brown, 9 Vet. App. 195, 199 (1996); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994)] As noted in the June 2013 Remand, review of the Virtual VA paperless claims processing system reveals a letter, dated in March 2006, not physically of record that provides the Veteran with the notification required by the holding Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No other pertinent information that his not physically of record is contained in the Virtual VA paperless claims processing system at the time of this writing. 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 Based on a review of the claims file and the contentions of record, the Board finds, regrettably, that further RO action on the claims on appeal is warranted. The record reflects VA Forms 21-4142s singed by the Veteran in March 2006 authorizing VA to obtain the records of a K.L., D.C, in Burbank, California. One of these releases indicated that this physician treated him for a low back disability (spondylolisthesis) from January 1969, to December 1971, or within months of the Veteran's separation from service. While the record reflects a statement from this physician dated in September 2005 that confirms that the Veteran is her patient, no treatment records from this physician have been obtained. As such, and given the obvious relevance of any records dated within months of service reflecting treatment for a back disability, the Board concludes that the RO should obtain these records upon remand in order to fulfill the duty to assist the Veteran. 38 U.S.C.A. § 5103(A)(b); 38 C.F.R. § 3.159(c)(1). In addition, the September 2005 statement from K.L., D.C., indicated that a VA medical professional by the name "M.D." ordered x-rays and Magnetic Resonance Imaging (MRI) in June 2005 that demonstrated bilateral myopathy in the lower extremities with deep venous thrombosis and herniated discs in the lumbar spine. Review of the record reveals June 2005 VA outpatient treatment reports authored by "M.D." but not the X-ray or MRI reports referenced by K.L. (These reports do reflect a June 2005 report authored by "M.D." noting that an ultrasound did not demonstrate deep venous thrombosis.) The September 2005 statement from K.L., D.C. also noted that the Veteran had been seen for five years by a VA psychiatrist, "L.A.," for PTSD and bipolar disorder. The record does reflect a July 2005 VA psychiatric note authored by "L.A.," but not the "five years" of treatment by this psychiatrist referenced by K.L. In fact, there are no records of VA treatment prior to June 2005 contained in the claims file. From the above, the record suggests that there may be records generated by VA that impact the adjudication of the claims that have not been obtained. Such records 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). Hence, the RO should obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, to include the records identified above, following current procedures prescribed in 38 C.F.R. § 3.159(c)(2) with regard to requests for records from Federal facilities. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain any records of treatment of the Veteran by Dr. Katherine Laster, D.C., 2310 W. Magnolia Blvd., Suite B, Burbank, CA 91506. 2. Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, to include, should they exist, reports from a June 2005 X-ray and MRI of the lower extremities and/or back and any record of psychiatric treatment by "L.A.," or any other provider of VA treatment, prior to July 2005. Follow the procedures set forth in 38 C.F.R. § 3.159(c)(2) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 3. All records received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. To help avoid yet another remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent medical evidence (to include that added to the record since the last adjudication of the claims) and legal authority. 6. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant 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 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). _________________________________________________ MARJORIE A. AUER 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).