Citation Nr: 1601256 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 05-13 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Colin E. Kemmerly, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran had active service from March 1968 to February 1970. The appeal comes to the Board of Veterans' Appeals (Board) on appeal from a May 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction over the appeal has since been transferred to the RO in Montgomery, Alabama. In May 2009, a videoconference hearing as to this issue was held before the undersigned. In June 2009 and April 2011, the Board remanded this issue for additional development. In a December 2011 decision, the Board denied the Veteran's claim of service connection for a low back disability. The Veteran appealed the December 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a June 2012 joint motion for remand (JMR), the Court vacated the December 2011 Board decision and remanded the matter for compliance with the terms of the JMR. In November 2012 and September 2014, the Board remanded this issue for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In September 2014, the Board remanded the above claim in an attempt to obtain any additional, available service treatment records pertaining to treatment of the Veteran's low back, as well as to obtain service personnel records. (The claims file already had packages of service treatment records that had been apparently obtained in 1970 and 2003.) In April 2015, the National Personnel Records Center (NPRC) responded they were forwarding all available records. The records sent consisted of the Veteran's service personnel records. In the prior remand, the Board had requested that if no records were found (in this case that would be additional service treatment records) that a formal finding of unavailability be promulgated. That formal finding and notice to the Veteran does not appear to have been accomplished. As it was specifically requested by the Board in its previous Remand, it should be accomplished. While the case is in Remand status, the Veteran may be given another opportunity to identify any available records of relevant treatment provided to him between 1970 to 1999, which records should be sought. Accordingly, the appeal is REMANDED to the AOJ for the following actions: 1. Given the April 2015 reply from the NPRC, a Memorandum of Unavailability documenting all of VA's actions to obtain service treatment records pertaining to the Veteran's treatment for his low back disability, including at military medical facilities located in Wiesbaden, Mainz, Heidelberg, and Stuttgart Germany from 1968 to 1970, should be prepared and associated with the claims file and the Veteran and his representative should be notified in writing that the records of any such treatment cannot be found. 2. Ask the Veteran to identify the places at which he received treatment for his low back between 1970 and 1999. With any necessary assistance from the Veteran, attempt to obtain the records of any such identified treatment. The Veteran and his representative should be advised of the efforts in this regard consistent with VA's regulatory obligations. 3. After undertaking any further development as may become indicated by the results of the actions requested above, readjudicate the claim. If the benefit sought on appeal remains denied, issue a supplemental statement of the case, and provide an opportunity to respond before the case is returned 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2015).