Citation Nr: 1328800 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 11-24 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from January 1952 to December 1955. This matter comes to the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2012 this matter was last before the Board at which time it was remanded for further development. The Veteran died in July 2012. The appellant is his widow and substitute claimant in this case. See Department of Veterans Affairs Memorandum dated in April 2013. 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 REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND When this matter was last before the Board, it was remanded to attempt to obtain non-Federal records that could possibly substantiate the application to reopen, as well as the underlying claim for service connection of a lumbar spine disability. In April 2013, the RO attempted to obtain such records. However, its request was returned as undeliverable with the address provided on the VA Form 21-4142. The appeal must be remanded to ensure that VA's responsibilities with respect to its duty to assist have been met, as well as compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders"). If VA makes reasonable efforts to obtain non-Federal records but is unable to obtain them, VA will provide the claimant with oral or written notice of that fact. For non-Federal records requests, VA may provide the notice at the same time it makes its final attempt to obtain the relevant records. In either case the notice must contain the following information: (i) The identity of the records VA was unable to obtain; (ii) An explanation of the efforts VA made to obtain the records; (iii) A description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and (iv) A notice that the claimant is ultimately responsible for providing the evidence. See 38 C.F.R. § 3.159(e). In an April 2013 letter, the RO notified the appellant that it was attempting to obtain non-Federal records and that it was the appellant's ultimate responsibility to provide these records. However, the notice did not advise the appellant of the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records or a description of any further action VA would take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the appellant submitted the records VA was unable to obtain. Accordingly, the claim must be remanded. 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. Provide the appellant with notice that complies with 38 C.F.R. § 3.159(e) regarding the RO's efforts to obtain non-Federal records for which the appellant has sought VA's assistance to obtain. See April 19, 2013, records request to "Billing Clinic." The appellant should be afforded an appropriate amount of time to respond. 2. After the above is complete, readjudicate the appellant's claim. If a complete grant of the benefits requested is not granted, issue a Supplemental Statement of the Case (SSOC) to the appellant and her representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant 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). _________________________________________________ S. S. TOTH 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).