Citation Nr: 1337893	
Decision Date: 11/19/13    Archive Date: 12/06/13

DOCKET NO.  09-27 383	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for a low back disorder, to include as secondary to service connected disability.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant and his nephew


ATTORNEY FOR THE BOARD

Nadine W. Benjamin, Counsel


INTRODUCTION

The Veteran (appellant) served on active duty from September 1968 to September 1970.  This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  The claims file was subsequently transferred to the RO in Muskogee Oklahoma. 

In May 2012, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim.  A complete transcript is of record.  In August 2012 and again in June 2013, the Board remanded this claim for additional development.  The case has been returned to the Board and is ready for further review.  

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

Reason for Remand: to obtain VA treatment records.  

In a September 2013 statement, the Veteran indicated that he has had additional treatment records at the VAMC in Oklahoma City, Oklahoma concerning his left knee and his back injury.  He requested that these records be obtained.  A review of the claims file and the electronic medical records reveals the most recent VA medical records in the file are dated in 2011.  

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).  Thus, because the Veteran has identified possible outstanding VA records pertinent to his claim on appeal, VA must undertake efforts to acquire such documents as these records may be relevant to his claims; a reasonable effort should be made to obtain such records.  See 38 U.S.C.A. § 5103A(b). 

Accordingly, the case is REMANDED for the following action:


1.  Obtain complete records of the Veteran's treatment at the VA medical facility in Oklahoma City, Oklahoma.  If these records are unavailable, simply do not exist, or further attempts to obtain them would be futile, document this in the claims file and so notify the Veteran.  See 38 U.S.C.A. § 5103A(b).  

2.  Following completion of the above, and undertaking any additional development deemed appropriate, the claim for should be readjudicated.  If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond.  The claim should be returned to the Board as warranted.



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).



_________________________________________________
KATHLEEN K. GALLAGHER
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).