Citation Nr: 1340474	
Decision Date: 12/06/13    Archive Date: 12/20/13

DOCKET NO.  05-26 369	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri



THE ISSUE

Entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for the residuals of colon and rectal cancer.



REPRESENTATION

Appellant represented by:	John S. Berry, Attorney



ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from June 1963 May 1965.  

This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in February 2009, granting a joint motion of partial remand, vacating, in pertinent part, a November 2007 Board decision, remanding the issue on appeal for additional development.  The appeal arose from a March 2003 rating decision by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA).  The Board remanded the case for additional development in August 2009.

The appeal is REMANDED to the Department of Veterans Affairs Regional Office.  VA will notify the appellant if further action is required.


REMAND

Although this case has been previously remanded for additional development, the Board finds that further action is required prior to appellate review.  

A review of the record reveals that in August 2013, subsequent to the Board's August 2009 remand, the Veteran provided correspondence expressing disagreement with the finding in a July 2013 supplemental statement of the case that he had refused a VA referral in March 2000.  He also stated that he had attended the medical referral appointment in Topeka, Kansas, and that a surgical procedure had been performed in Leavenworth, Kansas, prior to his having been sent to Topeka.  The available VA records do not include reports associated with these events.  

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  VA's duty to assist requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision.  38 C.F.R. § 3.159.  For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile; however, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records.  38 C.F.R. § 3.159(c)(2).  

Accordingly, the case is REMANDED for the following action:

1.  Appropriate efforts must be taken to obtain VA treatment records pertinent to a surgical procedure performed in Leavenworth, Kansas, and a medical referral appointment in Topeka, Kansas, during the period from March 2000 to December 2000, unless further efforts would be futile.  All attempts to procure records should be documented in the file.  

If any records identified by the Veteran cannot be obtained he should be provided a notice to (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) explain that he is ultimately responsible for providing the evidence.

2.  After completion of the above and any additional development deemed necessary, the issue on appeal should be readjudicated with consideration of all the evidence of record.  If any benefit sought remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and should be afforded the opportunity to respond.  Thereafter, the case should be returned to the Board for appellate review, if in order.

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).



_________________________________________________
F. JUDGE FLOWERS
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).