Citation Nr: 1808685 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 07-26 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for service-connected bronchiectasis, left lower lobe, prior to February 23, 2011. 2. Entitlement to an evaluation in excess of 30 percent for service-connected bronchiectasis, left lower lobe, from February 23, 2011. REPRESENTATION Appellant represented by: Paul Bradley, Agent ATTORNEY FOR THE BOARD M. Sopko, Counsel INTRODUCTION The Veteran had active service from April 1969 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of December 2006 and June 2017 of the Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board remanded this appeal in August 2017 for two reasons. First, the Veteran's electronic claims file was incomplete. Multiple documents were missing, including the December 2006 rating decision on appeal, the Notice of Disagreement filed in response to the December 2006 rating decision, the Statement of the Case resulting from the Notice of Disagreement, and the VA Form 9 filed in response to the Statement of the Case. The Board noted that the July 2008 Supplemental Statement of the Case in VBMS was incomplete as well. Therefore, the Board ordered VA, pursuant to Remand Directive #1, to: 1. The AOJ must undertake to obtain and/or reconstruct the Veteran's claims folder, including in consultation with the scanning vendor who created the electronic claims file. In particular, specific attempts should be made to obtain or recreate the December 2006 rating decision on appeal, the Notice of Disagreement filed in response to the December 2006 rating decision, the Statement of the Case resulting from the Notice of Disagreement, the July 2008 Supplemental Statement of the Case, and the VA Form 9 filed in response to the Statement of the Case. A series of e-mails were added to the Veteran's claims file subsequent to the August 2017 Remand. These e-mails suggest VA re-scanned the Veteran's paper claims file, but that none of the expressly identified documents were available. A November 16, 2017 Report of General Information states "these records are deemed lost or missing." Notwithstanding this statement, the undersigned finds VA did not comply with 38 C.F.R. § 3.159(c)(2). Pursuant to 38 C.F.R. § 3.159(c)(2), VA is required to make as many requests as a necessary to obtain these records unless VA concludes that further attempts are futile or that the records do not exist. While the undersigned finds no reason to question that the documents are not located within the claims file, the undersigned questions why VA could not obtain the documents it issued from another source, especially since they are at worst, only 12 years old. Therefore, remand is warranted to attempt to obtain these records. The undersigned notes that VA has complied with the second reason for remand - to attempt to obtain outstanding VA treatment records. Accordingly, the case is REMANDED for the following action: 1. VA should, pursuant to 38 C.F.R. § 3.159(c)(2), attempt to obtain the following documents from any available source, excluding a re-scan of the Veteran's paper claims file: a) the December 2006 rating decision on appeal, b) the Statement of the Case resulting from the Notice of Disagreement submitted to the December 2006 rating decision on appeal, and c) the July 2008 Supplemental Statement of the Case. It must make as many requests as a necessary to obtain these records unless VA concludes that further attempts are futile or that the records do not exist. Depending upon which, if any, of these documents VA obtains, it must also notify the Veteran of its findings and comply with 38 C.F.R. § 3.159(e). 2. VA should notify the Veteran, pursuant to 38 C.F.R. § 3.159(e), that it cannot obtain the following documents: a) the Notice of Disagreement filed in response to the December 2006 rating decision, and b) the VA Form 9 filed in response to the Statement of the Case. VA should request that the Veteran submit a copy of these documents if he possesses them. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the appellate issues based on the entirety of the evidence of record. If any claim remains denied, the Veteran should be issued a Supplemental Statement of the Case, and the appeal returned for appellate review. An appropriate period of time should be allowed for response. 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. §§ 5109B, 7112 (2012). _________________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).