Citation Nr: 1805182	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  12-22 786	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for a low back disability.


REPRESENTATION

Appellant represented by:	Minnesota Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Bosely, Counsel


INTRODUCTION

The Veteran served on active duty from September 1972 to September 1973.

This matter originally came before the Board of Veterans' Appeals (Board) on appeal of a January 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA).

The Veteran appeared at a hearing before the undersigned Veterans Law Judge in May 2014.

In October 2014, the Board remanded the claim for further development. 

The Board denied this appeal in a March 2015 decision.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which issued a memorandum decision in August 2016 vacating the Board's decision and remanding for readjudication.  The Court's order remanded the matter for action consistent with the terms of the memorandum decision. 

The Board again remanded the matter in May 2017.


REMAND

The Board has conducted a preliminary review of this matter and finds that further evidentiary development is warranted.  

Specifically, the Veteran wrote a letter in January 2018 indicating that the claims file does not contain all of the relevant private medical records.  He indicated that the treatment was through VA's Choice Program.  The available VA medical records, which are dated through October 2017, confirm that he participated in VA's Choice Program.  There are also administrative placeholder entries indicating that the private medical records had been received and "scanned" into the electronic database.  The scanned records were not uploaded into the Veteran's claims file.  Thus, because those records are potentially relevant, they should be obtained.  

Accordingly, the case is REMANDED for the following actions:

1.  Send the Veteran a letter requesting that he submit or authorize VA to obtain all private (non-VA) health care providers who may have additional records pertinent to the remanded claims.  Make at least two (2) attempts to obtain records from any identified sources.  If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession.

2.  Obtain all outstanding VA treatment records, including, but not limited to all treatment through VA's Choice Program.  Any records that are "scanned" into the electronic database should also be associated with the record in some manner.  

All reasonable attempts should be made to obtain such records.  If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file.  The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).

3.  After completing all actions set forth in paragraphs 1-2, undertake any further action needed as a consequence of the development completed in paragraphs 1-2 above.

This should include obtaining a VA opinion addendum should any relevant medical records be obtained.  

4.  Finally, readjudicate the appeal.  If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC).  The Veteran and his representative should be afforded the appropriate time period to respond.  Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

The Veteran 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. §§ 5109B, 7112.




_________________________________________________
RYAN T. KESSEL 
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252, 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).