Citation Nr: 1607886 Decision Date: 02/29/16 Archive Date: 03/04/16 DOCKET NO. 08-03 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Elliot A. Silver, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The Veteran had active military service from February to October 1973 and from April 1975 to June 1976. This case initially came to the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, that granted a 10 percent rating for hiatal hernia, denied a compensable rating for duodenal ulcer, and declined to reopen claims for service connection for a back strain and prostatitis. Jurisdiction of this case is with the VA RO in New York. In April 2010, the Veteran testified during a hearing at the RO before the undersigned. A transcript of the hearing is of record. In the Introduction to its July 2010 decision, the Board explained the historical background of the Veteran's claim for service connection for a back disorder, and concluded that the claim warranted de novo consideration. In July 2010, the Board granted a 30 percent rating for hiatal hernia, denied a compensable rating for duodenal ulcer, and declined to reopen the previously denied claim for service connection for prostatitis. At that time, the Board remanded the claim for service connection for a back disorder to the Agency of Original Jurisdiction (AOJ) for further development. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND On November 3, 2014, the Veteran reportedly underwent a VA Spine examination. A November 3, 2014 Orthopedic Surgery note indicates that he was seen in that clinic for an examination and that a full report was to follow. A supplemental statement of the case (SSOC) also reports that the Veteran underwent the examination on November 3, 2014. The examination report does not appear to be among the records in the Veteran's claims file. In April 2015, the Veteran reported that his initial contact with the VA healthcare system occurred July 1, 1976, one day after his separation from active service. The claims file includes records of his July 1976 VA hospitalization for gastrointestinal disability, January and March 1978 VA examination reports, and VA treatment since 1984 The claims file shows that, in May 1997, the RO requested records of the Veteran's treatment at the Brooklyn VA medical center (VAMC) from July to August 1976. The RO was advised that the records from 1976 were "retired" and the earliest records for him were from 1986. In November 1997, the RO requested records of the Veteran's treatment at the Brooklyn VAMC since January 1976. No response was received. VA is required to help a claimant obtain relevant records in Federal custody. 38 U.S.C.A. § 5103A(b),(c) (West 2014). It does not appear that the RO made any further effort to obtain the records identified by the Veteran. The Veteran was incarcerated from May 2005 to March 2006 at the Federal Correctional Institution (FCI) Fairton, New Jersey. Efforts should be made to obtain his prison medical records. Id. Recent medical records regarding the Veteran's VA medical treatment, dated since November 2014, should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all records of the Veteran's treatment at the Brooklyn VAMC between July 1976 and 1984, including "retired" records. 2. Obtain all records regarding the Veteran's VA treatment for a back disability since November 2014. 3. Obtain all records regarding the Veteran's treatment at the FCI in Fairton New Jersey from May 2005 to March 2006. Ask the Veteran for any needed authorization and inform him that he may obtain and submit the records himself. If any requested records cannot be obtained, the appellant must be notified of the attempts made and of what additional actions will be taken with regard to his claim. 4. Associate a complete copy of the report of the Veteran's November 3, 2014 VA Spine examination with his electronic file. If the examination report cannot be obtained, or is inadequate, provide the Veteran with a new examination in accordance with the Board's previous remand instructions. 5. If the benefit sought on appeal remains denied, the AOJ should issue a supplemental statement of the case, before returning the case to the Board, if otherwise 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 2014). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).