Citation Nr: 1333058 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 08-28 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a bilateral knee disability, to include as secondary to a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from December 1960 to November 1962. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In April 2012, the Board reopened a claim of entitlement to service connection for a low back disability and remanded this issue, on its merits, along with a claim of entitlement to service connection for a bilateral knee disability for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action, on his part, is required. REMAND The Board finds that further action is warranted before a decision can be reached. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In April 2012, the Board remanded the claims, in part, so that additional efforts could be taken to obtain private medical records from Advanced Neuro-Rehab Services. In April 2012, the AOJ sent the Veteran a letter notifying him that Advanced Neuro-Rehab Services did not have treatment records from 1995 to 1998, but did state that his first visit was in September 2000. He was notified that if he wished for VA to assist him in obtaining these records, he should complete and submit a VA Form 21-4142, Authorization and Consent to Release Information to VA. In November 2012, the Veteran responded and submitted the requested form so that these records could be obtained. The AOJ, however, took no further action. VA has a duty to assist claimants in obtaining records not in the custody of a Federal department or agency. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c) (2013). Therefore, a remand is necessary so that reasonable efforts can be taken to obtain the private medical records identified by the Veteran. Additionally, the Board requested that VA treatment records dated from 1991 to the present from the Detroit/Allen Park VA Medical Center (VAMC) be associated with the claims file. The Board observes that the Allen Park VA facility is no longer in operation but any records from that facility should have migrated to the Detroit VAMC. The Board further observes that in April 2012, the AMC made a request to the Detroit VAMC for VA records dated from January 1991 to February 2002. The request specifically stated that if there were no records from the time frame requested, a negative response was required. Although it appears that VA records dated in February 2002 have been associated with the claims file, there is no indication that records dated from January 1991 to February 2002 were unavailable. Therefore, on remand, attempts should be made to obtain these records, or if they are unavailable, the claims file should be documented accordingly. The record also reflects that the Veteran receives ongoing treatment at the Detroit VAMC. Currently the Veteran's electronic folder contains records from the Detroit VAMC dated through April 2012. On remand, all updated pertinent VA treatment records should be obtained. Accordingly, the case is REMANDED for the following actions: 1. With any needed assistance from the Veteran, obtain all treatment records pertaining to his treatment of a low back disability and a bilateral knee disability with Advanced Neuro-Rehab Services from September 2000 to the present. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Refer to the April 2012 request from the AMC to the Detroit VAMC asking for VA treatment records dated from January 1991 to February 2002. Note that although the Veteran's name, claims file number, and Social Security number appear to be correct, his date of birth is not correctly listed on the request. Follow-up on this request and determine if records for this time frame exist, and if not, the record must be clearly documented accordingly in conformance with 38 C.F.R. § 3.159(e). Additionally, obtain the Veteran's VA treatment records from the Detroit VAMC from April 2012 to the present. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any of the benefits sought on appeal remain denied, in whole or in part, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ S. HENEKS 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).