Citation Nr: 1340189	
Decision Date: 12/05/13    Archive Date: 12/20/13

DOCKET NO.  09-27 981	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to service connection for a left ankle disorder.

2.  Entitlement to service connection for hypertension, to include as due to exposure to herbicides.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Barstow, Counsel



INTRODUCTION

The Veteran had active military service from July 1970 to July 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the VA Regional Office (RO) in Louisville, Kentucky.

The case was remanded in February 2011 to afford the Veteran VA examinations.  Review of the record indicates substantial compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required.


REMAND

Regrettably, another remand is necessary.  The Veteran was afforded a VA examination in April 2011 and the examiner referenced treatment records dated in March 2010 and March 2011.  A review of the Veteran's claims file shows records dated through August 2009 in the file folders and from May 2010 through June 2012 in the Virtual VA electronic record uploaded in June 2012.  The most recent supplemental statement of the case (SSOC) dated in February 2012 addressed the records dated through August 2009, but did not discuss records dated after that, even though the VA examiner clearly referenced additional records.  VA treatment records are deemed to be constructively of record in proceedings before the Board.  Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA documents are deemed to be constructively in the possession of VA adjudicators on the date compiled).  Therefore, a remand is necessary to obtain additional records and for the issuance of a new SSOC that addresses the records.


Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file and the Virtual VA electronic record copies of all VA treatment records that are not already of record, to include all records dated from August 2009 through May 2010.

2.  Then, readjudicate the issues on appeal.  If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond.  The case should then be returned to the Board for further consideration.

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).



_________________________________________________
MILO H. HAWLEY 
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).