Citation Nr: 1335915 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-22 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for breast cancer, including residuals of surgery. ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran had active military service from: February 1984 to October 1988; August 25, 1990 to August 28, 1990; February 3, 1991 to May 26, 1991; June 28, 1991 to July 31, 1991; and March 31, 2003 to April 7, 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran initially requested a hearing before the Board on her VA Form 9 dated May 2010, but withdrew the request the same month in order to expedite her claim. The hearing request was properly withdrawn. 38 C.F.R. § 20.702(e). Her claim was remanded in October 2012 for further development. Specifically, the Appeals Management Center was directed to attempt to locate specific service treatment records (STRs), as well as private treatment records from Kaiser Permanente Medical Center, and associate them with the claims folder. Sufficient attempts were made to track down the STRs, each coming up negative. However no attempt was made for the alleged records at Kaiser Permanente and thus, the claim must be remanded. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by 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 Although the Board sincerely regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. The Board finds that this appeal must be remanded to attempt to locate and obtain private treatment records from Kaiser Permanente Medical Center in order to comply with the directives of the October 2012 remand. A Court or Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). VA will make "reasonable efforts" to obtain relevant records not in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(1). Here, the October 2012 remand contained a specific directive for the AMC to make arrangements to obtain a complete copy of the Veteran's treatment records from Kaiser Permanente Medical Center, to include all mammogram results, dated since 1990. The year 1990 may have been written in error, as the Veteran indicated on her September 2008 claim for benefits that she began receiving treatment from Kaiser in 1996. This fact is mentioned in the body of the Remand itself, yet 1990 is listed in the directive. In the subsequent November 2012 VCAA letter, the AMC advised the Veteran that if she did not possess the records from Kaiser Permanente Medical Center herself, then she should complete and send in VA Form 21-4142, Authorization and Consent to Release Information. This would allow the AMC to obtain the treatment records. The Veteran submitted a completed a VA Form 21-4142 dated December 2012 listing Kaiser Permanente Medical Center as a source of pertinent information, with the timeframe listed as September 1996 to present. The AMC issued a June 2013 Supplemental Statement of the Case (SSOC) which continued to deny the Veteran's claim. The AMC stated that it requested the Veteran to provide information for medical facilities, including that of Kaiser Permanente Medical Center, and that she submitted a statement letter in response which was considered in the readjudication. It does not speak to any attempts made for those private records, instead solely focusing on the negative responses it received regarding the sought after STRs. The claims folder itself, both before and after the October 2012 remand, does not contain any record of an attempt made to obtain records from Kaiser Permanente Medical Center dated before 2002. Thus, it does not appear that any records from Kaiser Permanente Medical Center from 1996 until January 1, 2002 have ever been requested. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain copies of the Veteran's treatment records from Kaiser Permanente Medical Center, to include all mammogram results, dated January 1996 to January 2002. 2. Then after conducting any additional development deemed necessary, readjudicate the Veteran's claim on appeal. If the full benefit sought on appeal is not granted, provide the Veteran with a supplemental statement of the case and allow an appropriate time for a response. The Veteran 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). _________________________________________________ P.M. DILORENZO 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).