Citation Nr: 1332061 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 08-37 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a spine disorder, to include as secondary to the service-connected pulmonary sarcoidosis. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active service from June 1962 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified at a hearing before an RO Decision Review Officer (DRO) in May 2010. A transcript of these proceedings has been associated with the Veteran's VBMS electronic file. In January 2011, the Board remanded the case to the RO via the Appeals Management Center (AMC) in Washington, DC. In that decision, the Board noted that the issue of service connection for a shoulder disorder had been raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). As the Board did not have jurisdiction over it, and it was referred to the AOJ for appropriate action. In a February 2013 decision, the Board dismissed claims of entitlement to service connection for a joint disorder, claimed as stiffness of the joints, including as secondary to the service-connected pulmonary sarcoidosis residuals, and for a dental disorder, to include loss of teeth, including as secondary to the service-connected pulmonary sarcoidosis residuals. The issue of entitlement to service connection for a spine disorder, to include as secondary to the service-connected pulmonary sarcoidosis was remanded for further development. The Veteran has a Virtual VA paperless claims file and a VBMS electronic file, which are highly secured electronic repositories that are used to store and review documents involved in the claims process. 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. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant 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). The claims file currently before the Board is a reconstructed virtual file consisting of documents in the Veteran's Virtual VA claims file and his VBMS electronic file. Documentation of record reflects the original claims file was misplaced while the case was on remand. The instant claim was remanded in February 2013 in order to locate a transcript of a May 2010 RO hearing. Since that time, the transcript of this hearing has been associated with the Veteran VBMS electronic file. Unfortunately, however, a review of both the Veteran's Virtual VA file and his VBMS electronic file reveals that numerous medical records and other documents relevant to the claim are missing. Many of these were identified in the May 2010 hearing, and others were identified from a review of the various rating decisions and statements of the case listing evidence used in those decisions. These include (i) a VA examination report dated September 15, 2009, (ii) VA treatment records dated from 2012 to the present, (iii) additional service evidence and air crew hours discussed in the June 2013 supplemental statement of the case, (iv) medical evidence cited in the December 2007 rating decision, including an August 2007 VA treatment record indicating a negative history of sarcoidosis testing , x-rays dated in 2003, and November 2007 treatment report indicating clear lungs, (v) evidence identified in the May 2010 RO hearing, including a December 19, 2008 VA treatment note with a positive nexus from Dr. Fennel, an April 2009 VA examination performed by Dr. Lwin, a 2009 bone density examination performed at the Columbia VA Medical Center, private dental records that the Veteran contends show calcium leeching similar to what he says caused his spine arthritis, MRI performed in February 2010, records from Newport Naval Hospital in the 1960s, and December 2009 blood tests that the Veteran contends show high calcium in the blood. Upon remand, the RO/AMC should thoroughly review the Veteran's virtual files and identify and attempt to obtain missing documentation relevant to the Veteran's claim. This should include a search for the documents listed above. Updated records from VA should also be obtained and the Veteran should be afforded an opportunity to submit additional medical evidence relevant to his claim that may not be associated with the claims file. In this regard, the Board notes 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). Accordingly, the case is REMANDED for the following action: 1. Continue to exert all reasonable efforts to locate the original claims file. 2. In the event the original claims file cannot be found, thoroughly review the Veteran's virtual files and identify and attempt to obtain missing documentation relevant to the Veteran's claim. This should include contacting the Veteran and all appropriate entities and attempting to obtain (i) a VA examination report dated September 15, 2009, (ii) VA treatment records dated from 2012 to the present, (iii) additional service evidence and air crew hours discussed in the June 2013 supplemental statement of the case, (iv) medical evidence cited in the December 2007 rating decision, including an August 2007 VA treatment record indicating a negative history of sarcoidosis testing , x-rays dated in 2003, and November 2007 treatment report indicating clear lungs, (v) evidence identified in the May 2010 RO hearing, including a December 19, 2008 VA treatment note with a positive nexus from Dr. Fennel, an April 2009 VA examination performed by Dr. Lwin, a 2009 bone density examination performed at the Columbia VA Medical Center, private dental records that the Veteran contends show calcium leeching similar to what he says caused his spine arthritis, MRI performed in February 2010, records from Newport Naval Hospital in the 1960s, and December 2009 blood tests that the Veteran contends show high calcium in the blood. Take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for his claimed disability. This should specifically include updated treatment records from VA. The aid of the Veteran in securing records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 3. After completion of all of the above, the AMC or RO should re-adjudicate the claim on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a SSOC. The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include the applicable law and regulations considered pertinent to the issue on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. 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. 2013). _________________________________________________ ERIC S. LEBOFF 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).