Citation Nr: 1329133	
Decision Date: 09/11/13    Archive Date: 09/17/13

DOCKET NO.  10-19 861	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to service connection for a lung disability. 


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and L.P.


ATTORNEY FOR THE BOARD

Sara Schinnerer, Counsel


INTRODUCTION

The Veteran had active service from August 1969 to September 1970. 

This appeal comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.  

The Veteran testified before the undersigned Veterans Law Judge at a March 2012 videoconference hearing.  A transcript of the proceeding is associated with the record.  

This case was before the Board in November 2012 when it was remanded for additional development.  It has since been returned to the Board for further appellate action.

The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA.  


REMAND

In the November 2012 remand, the Board, in pertinent part, directed that any outstanding private treatment records identified by the Veteran be obtained.  In this regard, the Board noted the Veteran's testimony, that he received treatment for lung disability at St. Joseph's Hospital located in Texarkana, Arkansas, in approximately 1993 through 1994.

While additional records from other private physicians and hospitals were requested and associated with the claims files subsequent to the November 2012 remand, there is no indication that the originating agency attempted to obtain records from St. Joseph's Hospital, in Texarkana, Arkansas.  

Moreover, after the most recent supplemental statement of the case was issued to the Veteran in April 2013, additional evidence was received, consisting of private treatment records from Yakima Indian Health Center, Harborview Hospital, and Toppenish Community Hospital, which the Veteran's representative argues, pertain to the Veteran's claim for entitlement to service connection for a lung disability.  The Veteran has not waived his right to have the evidence reviewed by the originating agency.  Further, in a May 2013 statement, the Veteran's representative explicitly declined to waive review of such evidence by the originating agency, and requested that the appeal be remanded for consideration of the evidence by the originating agency.  

In light of these circumstances, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1.  The RO or the AMC must undertake appropriate development to obtain all available, outstanding pertinent private treatment records from St. Joseph's Hospital in Texarkana, Arkansas, from 1993 through 1994, and VA treatment records from the VA Medical Center in Yakima, Washington from August 2012 to the present.  If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record, and the Veteran and his representative so notified. 

2.  The RO or the AMC should also undertake any other development it determines to be warranted.

3.  Then, the claim must be readjudicated.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should issue to the Veteran and his representative a supplemental statement of the case and afford them the appropriate opportunity for response before the claims files are returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or 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).



_________________________________________________
Shane A. Durkin 
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).