Citation Nr: 1616033 Decision Date: 04/20/16 Archive Date: 04/26/16 DOCKET NO. 99-07 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a low back disability. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a knee disability. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for cervical spine disability. 4. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a bilateral hearing loss disability. ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran is reported to have had active military service from September 1969 to April 1971. The Veteran's service information, and all other information contained in this remand document is obtained from the electronic archives system of the Board of Veterans' Appeals (Board), which contains a copy of a November 2009 remand from the Board to the the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board's electronic archives system indicates that in November 2009, this matter was remanded to the RO via the Appeals Management Center to afford the Veteran an opportunity for a new hearing. The Board noted that a hearing was conducted before a Veterans Law Judge in February 2004, before a judge who subsequently retired. In addition, only a partial transcript of that hearing was of record, apparently due to the first of two tapes being lost or damaged. The Veteran requested a new hearing in correspondence dated in January 2005. The Board remanded the case to afford the Veteran a hearing in August 2009. On October 14, 2009, the RO issued a letter to the Veteran addressed to his last known address in Memphis, Tennessee, notifying him that a hearing was scheduled at the Nashville RO for November 2, 2009. Subsequently, however, that letter was returned, with a notification that it could not be delivered or forwarded. On October 20, 2009, RO personnel determined through the use of a computerized database that the Veteran had a new address in California. A note from a member of the RO staff indicated that the appeal was to be transferred to the appropriate RO in California. For unknown reasons, the file was not transferred to the RO in California. Instead, on October 28, 2009, the Nashville RO issued a letter to the Veteran addressed to his new California residence notifying him that a hearing was scheduled for November 2, 2009. The Veteran apparently did not appear for that hearing, and the case was returned to the Board. In its November 2009 review, the Board directed that efforts be undertaken to contact the Veteran; that jurisdiction of the case be transferred to an appropriate RO in California if the Veteran was located and that the Veteran be afforded an additional hearing. However, there is no evidence in the claims file available for review. The appellate status of the claims listed on the title page cannot be confirmed, nor is presently evident that there are additional claims which might have been perfected since 2009 so that the Board would now have proper appellate jurisdiction over them. Both the Veterans Benefits Management System (VBMS) and the older Virtual VA system contain no evidence regarding any appeals allegedly before the Board. Presumably, the entire claims file is outstanding, and must be associated with the electronic claims file prior to any adjudication of the claims. All records held in federal custody are considered as constructively part of the evidentiary record. Bell v. Derwinski, 2 Vet. App. 611 (1992). The entire claims file is missing in this case and must be obtained prior to any adjudication. Accordingly, the case is REMANDED for the following action: 1. Determine the issues certified to the Board for appellate review and obtain the claims file for those appeals. Associate the evidence either electronically or, if unavailable, obtain the original paper claims file. 2. Determine the Veteran's whereabouts and afford him the opportunity for a new hearing before a VLJ and the opportunity to provide additional medical or non-medical evidence in support of his claims. 3. Document all efforts and follow all appropriate additional development under the law. If the matter is to be returned to the Board, issue appropriate supplemental statements of the case prior to returning the claims file to the Board for adjudication. 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). _________________________________________________ Vito A. Clementi 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).