Citation Nr: 1331778	
Decision Date: 10/02/13    Archive Date: 10/07/13

DOCKET NO.  11-31 291	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151  for residuals of trabeculectomy surgery on October 4, 2005.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Jennifer R. White, Counsel


INTRODUCTION

The Veteran served on active duty from March 1951 to March 1954. 

This case comes before the Board of Veterans' Appeals  (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the Veteran's claim.  

In January 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of these proceedings has been associated with the Veteran's virtual claims file. 

The Veteran's claim was previously remanded in April 2013 to the Appeals Management Center. 

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).

This appeal is REMANDED to the Department of Veterans Affairs Regional Office.  VA will notify the Veteran if further action is required.



REMAND

Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d).

In this case, the Board notes that the previous remand, dated April 2013, indicated that relevant records were missing from the Veteran's claims file.  In this regard, the Board notes that there are two VA medical opinions in connection with the claim, dated in August 2009 and June 2011.  In these reports, each examiner noted the presence of an informed consent document in connection with the October 2005 surgery.  Although the previous remand indicated that this document has not been associated with the Veteran's claims file, the consent was contained in VA treatment records associated with the record in June 2011.  Thus, although this document was not obtained by the AMC, remand is not required. 

However, the previous remand noted that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be 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).  Pursuant to the VCAA, VA must obtain outstanding VA and private records.  See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c).

The previous remand ordered updated VA treatment records to be obtained and associated with the claims file.  The AMC requested a release to obtain such records in a letter to the Veteran dated June 2013.  Clearly, a privacy release is not required for VA to associate documents from VA facilities with the claims file as VA has constructive possession of such records.  Thus, such should be accomplished on remand.  Stegall v. West, 11 Vet. App. 268 (1998). 

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) (2013).  Expedited handling is requested.)

1.  Obtain any outstanding VA treatment records and associate them with the virtual claims file.  

2.  After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issue on appeal.  If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case.

The Veteran 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. 2013).



_________________________________________________
J.A. MARKEY
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) (2013).