Citation Nr: 1332052 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 11-28 037 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for right leg sciatica, to include as due to service-connected back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION This appeal was processed using the paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The Veteran served on active duty from April 1943 to December 1945. This matter originally came to the Board of Veterans' Appeals (Board) from an August 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The case was remanded by the Board in January 2013 for additional development. In April 2013, the Board denied entitlement to service connection for arthritis of the hands and remanded the issues listed on the above title page to the RO to obtain additional treatment records, to include the records from his 2006 back surgery. 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). This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In response to the Board's April 2013 Board remand, the RO sent the Veteran a letter in May 2013 in which the Veteran was requested to complete and return enclosed VA Form 21-4142, Authorization and Consent to Release Information, for each private physician who had treated him for his back and right leg disabilities. The Veteran was also told that if he had received any VA medical treatment for his back and right leg disabilities, he should provide the name and location of the VA medical facility, as well as the approximate dates of treatment, on the enclosed VA Form 21-4138, Statement in Support of Claim. No response was received from the Veteran. This letter does not specifically request that the Veteran provide information on his 2006 back surgery, as directed by the Board's April 2013 remand. The Courts have held that RO compliance with a remand is not discretionary, and that if the RO fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). As the RO did not specifically request information on the Veteran's 2006 back surgery, there has not been adequate compliance with the terms of the Board's April 2013 remand. Id. Consequently, another remand of this case for additional development is warranted. Accordingly, the case is REMANDED for the following action: (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. Contact the Veteran and request that he identify all VA and non-VA medical providers who have treated him for his back disability, to specifically include the records from the 2006 back surgery, and provide the appropriate authorizations where necessary. Then attempt to obtain copies of the related medical records that are not in the claims file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable attempts to secure the named records, the RO is unable to secure same, notify the Veteran and his representative and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. Give the Veteran and his representative an opportunity to respond. If private medical records are identified by the Veteran, the RO must make 2 attempts to obtain these records, unless the first attempt makes it clear that further attempts would be futile. If identified private medical records are not obtained, the RO must (1) inform the Veteran of the records that were not obtained, (2) inform the Veteran of the steps taken to obtain the records, and (3) inform the Veteran that the claim will be decided on the evidence of record, but that if the medical records are later submitted the claim may be readjudicated. 2. Readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative and an appropriate period of time in which to respond. Then return the appeal to the Board. 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 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). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).