Citation Nr: 1332182	
Decision Date: 10/17/13    Archive Date: 10/21/13

DOCKET NO.  13-03 903	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for a respiratory disorder, to include as secondary to herbicide exposure.


ATTORNEY FOR THE BOARD

M. Sopko, Associate Counsel


INTRODUCTION

The Veteran had active service from June 1971 to July 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.  The rating decision denied entitlement to service connection for a respiratory disorder and unspecified arthritis.  The Veteran submitted a Notice of Disagreement in July 2012 which was limited to his claimed respiratory disorder.

The Veteran requested a Travel Board Hearing in his December 2012 substantive appeal (VA Form 9).  Although he was scheduled for a Travel Board Hearing at the RO in August 2013, the Veteran advised that he was unable to attend a hearing "in Washington, D.C."  

The Veteran is apparently unaware of the opportunity to testify at the RO. Because this case must be remanded, the Veteran will be afforded a opportunity to clarify his wishes regarding any Board hearing, either by Travel Board or videoconference hearing at the RO.

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

The Veteran was afforded an Agent Orange examination in October 2010.  The record in the claims file is incomplete.  It lists only the Veteran's past medical history.  It does not contain the examiner's findings, nor does it include the X-ray results from this examination as discussed in the February 2013 VA examination noted below. 

The February 2013 VA examiner noted under "Evidence review" that she had reviewed records in the Vista Computerized Patient Record System (CPRS).  These records are not in the claims file, Virtual VA, or VBMS.  They must be obtained so the Board may consider them.  Records generated by VA facilities that may impact the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of the claim, regardless of whether they are physically in the claims file.  Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).

Accordingly, the case is REMANDED for the following action:

1. Obtain the Veteran's complete VA treatment records, including the October 2010 Agent Orange examination and the records the February 2013 VA compensation examiner referenced in the Vista CPRS and include in the claims file, either the physical claims file or electronic ("Virtual VA") file.

2. Contact the Veteran and clarify his wishes regarding testifying before a Veterans Law Judge of the Board, in accordance with applicable provisions.  If the Veteran desires such a Travel Board or videoconference hearing, schedule him for one. 

3.  Then readjudicate the claim on its underlying merits in light of this and all other additional evidence.  If this claim continues to be denied, send the Veteran a Supplemental Statement of the Case (SSOC) and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim.

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).



_________________________________________________
Vito A. Clementi
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).