Citation Nr: 1333131 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 05-22 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for diabetes mellitus type II, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from October 1969 to May 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified during a hearing before the undersigned at the RO in June 2010. A transcript is of record. The claim was remanded in August 2010 and March 2012 for additional development. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The relevant records have been reviewed. 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 In the August 2010 remand, the Board requested that all VA treatment records be obtained, including an Agent Orange screening examination with a doctor the Veteran identified. After requesting and obtaining VA treatment records, the Appeals Management Center (AMC) determined that such a record with that physician was not available. In November 2011, the AMC issued a Formal Finding of Unavailability regarding the record. However, the Veteran was not informed that the VA record he identified was determined to be unavailable. The Board notes that the Veteran again requested in January 2012 that the Agent Orange registry screening examination report be obtained and stated that he received his treatment at the Chillicothe VA Medical Center (VAMC). This indicates that the Veteran is unaware that this record is considered to be unavailable. If VA requests records from a Federal Agency, those efforts must continue until the records are obtained or it is reasonably certain that the records are unavailable or further efforts would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159 (2013). If VA concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA must provide the claimant with oral or written notice of that fact and include notation of such notice in the claims file. The notice must contain the following information: (i) The identity of the records VA was unable to obtain; (ii) An explanation of the efforts VA made to obtain the records; (iii) A description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and (iv) Notice that the claimant is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e) (2013). If the AMC concludes that the requested records do not exist or further efforts to obtain them would be futile, the Veteran must be provided with the appropriate notice according to 38 C.F.R. § 3.159(e). Accordingly, the case is REMANDED for the following action: 1. Proper notice must be provided to the Veteran of the unavailability of the Agent Orange registry examination report he identified in accordance with 38 C.F.R. § 3.159(e). A copy of this notification should be placed in the claims folder. 2. If the benefits sought on appeal remain denied, issue a supplemental statement of the case before the claims file is returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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 2002 & Supp. 2012). _________________________________________________ J. A. MARKEY 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).