Citation Nr: 22018758
Decision Date: 03/30/22	Archive Date: 03/30/22

DOCKET NO. 17-34 253
DATE: March 30, 2022

REMANDED

The appeal to reopen the claim for entitlement to service connection for a right elbow disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from February 2, 1977, to February 23, 1977.

This appeal is before the Board of Veterans' Appeals (Board) from a January 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO) and in October 2021, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ) and a transcript of that hearing is associated with the claims file.

The Veteran seeks to reopen his claim of service connection for a right elbow disability.

However, the Board finds the VA has not fully satisfied its duty to seek relevant medical records for this Veteran and a remand for further development is warranted prior to determining whether new and material evidence has been received to warrant reopening of the Veteran's claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see generally Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992).

In this case, the evidence contains April and May 2016 private medical records from Dr. N.H. which indicate he received treatment for post-traumatic osteoarthritis of the right elbow. The record specifically states, "Patient again reports injury to right elbow that resulted in his discharge from the Army. This initial injury has resulted in traumatic arthritis to the right elbow, confirmed by x-ray." However, the evidence of record does not contain the specified x-ray and instead only contains records referencing the x-ray. Since the x-ray would document a diagnosis of traumatic arthritis, it would represent new evidence of a previously unknown diagnosis and thus also be material evidence related to the Veteran's claim. In order for the Board to determine whether new and material evidence exists to reopen the right elbow disability claim, additional development must be undertaken. 

Accordingly, a remand is required so that VA can fulfill its duty to assist and to provide VA the opportunity to review private medical records to determine whether there is new and material evidence to warrant reopening of the Veteran's claim. See 38 U.S.C. § 5103A(c)(1)(B); 38 C.F.R. § 3.159(c)(1), 20.904(a).

The matter is remanded for the following actions:

1. Send to the Veteran the forms necessary to authorize VA to obtain, on the Veteran's behalf, the outstanding private medical records from Dr. N.H. at Cuero Community Hospital containing the x-ray which confirms the diagnosis of traumatic arthritis of the right elbow. VA then shall make reasonable attempts to obtain those records. Such attempts must be documented in the claims file. If, after reasonable attempts have been made, these records cannot be obtained, then notify the Veteran as such in accordance with 38 C.F.R. § 3.159(e).

2. After the above is completed, in addition to any other development deemed necessary, readjudicate the Veteran's claim.

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JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Law Clerk, Tyler R. Masters

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.