Citation Nr: 1332151 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 12-03 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for poliomyelitis with residual weakness of leg and joints. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION 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). The Veteran had active military service from November 1959 to February 1962. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the Board at an August 2013 hearing conducted via videoconference. A transcript of the hearing is of record. 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 Unfortunately, a remand is necessary in the instant case prior to a Board decision on the merits. Specifically, the Veteran has indicated treatment at VA facilities related to his disability on appeal. Indeed, he submitted with his original claim a November 2010 VA treatment record from the Iowa City VA Medical Center (VAMC). He also testified at the August 2013 Board hearing that he had recently received leg braces from the VA facility in Victoria, Texas. In addition on the January 2012 SOC, the RO referenced VA treatment records from Omaha VAMC and Houston VAMC dated from November 2008 through December 2011 but these records are not in the claims file or in Virtual VA records. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive 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). A remand is necessary to allow outstanding VA treatment records to be obtained and associated with the claims file. As a final note, the Veteran testified that his private physician, Dr. V. from Baylor College, stated that his preexisting disability may have been aggravated by his active service. See, e.g., Board hearing transcript at 10. Records of Dr. V.'s treatment of the Veteran, to include this asserted medical statement, have not been obtained. On remand, the Veteran should be requested to identify any pertinent private treatment records and complete the necessary release to allow VA to obtain these records. 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. Contact the Veteran and request he identify any private medical provider that has treated him for his claimed disability including any statements from Dr. Velgrasso at Baylor College regarding his aggravation of his post polio symptoms in service. The Veteran should be requested to complete the appropriate medical release for each treatment provider identified. After receiving the appropriate release, the AOJ should undertake reasonable attempts obtain these records. 2. Obtain and associate with the claims file all outstanding VA treatment records. Specifically, records generated by VA facilities in Iowa City, Iowa, Omaha, Nebraska, and Houston and Victoria, Texas, must be obtained. Efforts to obtain these records must be associated with the claims file and requests for these records must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. 3. If, and only if, records obtained above suggests an in-service aggravation of the Veteran's preexisting disability, schedule the Veteran for an appropriate VA examination to address the nature and etiology of any poliomyelitis with residual weakness. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Following a review of the claims file and physical examination of the Veteran, the examiner should address the following: a. Is it at least as likely as not (probability of at least 50 percent) that the Veteran's preexisting disability, shown on induction to be post infection atrophy of the entire left leg, underwent a permanent increase in severity during his period of active service? The examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "an increase in severity" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. b. If the answer to (a) is yes, does the evidence clearly and unmistakably show (i.e., is it obvious, manifest or undebateable), that any such permanent increase shown during service is due to the natural progress of the disease? If answered in the affirmative, identify any such evidence. A detailed rationale should be provided for all opinions expressed. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. 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. 2012). _________________________________________________ SARAH B. RICHMOND Acting 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).