Citation Nr: 1338759	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  09-38 523	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a low back disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Dworkin, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1960 to May 1962.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's application to reopen a claim for entitlement to service connection for a low back disability.  In March 2011, the Board reopened the claim and remanded it for further evidentiary development.

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

Unfortunately, a remand is required for the Veteran's claim of entitlement to service connection for a low back disability.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c) (4) (2013).  That duty includes obtaining relevant medical evidence of which VA is aware.  Id.  

In March 2011, the Board remanded the Veteran's claim for further development that included directives to the RO to obtain various medical records.  In February 2012, the Veteran submitted an additional statement that referenced a previously unidentified VA medical facility where the Veteran had received treatment.  This facility, Brown's VA Hospital in Dayton, Ohio, was not identified in the Board's remand directives as a treatment facility where records would need to be requested.  However, the Veteran's file does not contain any records from Brown's VA Hospital and there are no records from the RO reporting attempts to obtain records from that facility.  

The Board finds that should these records from Brown's VA Hospital exist, they would be relevant to the Veteran's claim.  As the records are claimed to be with a VA facility, the VA is found to be in constructive possession of these records and must make appropriate efforts to locate and associate the records with the claims file.  Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1.  Make arrangements to obtain all relevant records from facilities of the Brown's VA Hospital in Dayton, Ohio, from 1962 to present, and associate such records with the claims file.  If those records are not obtained, obtain a negative response and associate that response with the claims file.

2.  After giving the Veteran an adequate opportunity to either submit additional relevant records or request VA's assistance in obtaining such records, and after obtaining all available relevant VA treatment records, undertake any additional development deemed necessary.

3.  Then, readjudicate the issue on appeal.  If the benefit sought is not granted in full, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity for response.  Then return to the Board.

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 Supp. 2013).




_________________________________________________
Michael J. Skaltsounis
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).