Citation Nr: 0628316 Decision Date: 09/11/06 Archive Date: 09/20/06 DOCKET NO. 04-01 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a skin condition. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Linda E. Mosakowski, Associate Counsel REMAND The veteran served on active duty from June 1969 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In his February 2003 notice of disagreement, the veteran requested a hearing at the RO. The record does not show that the veteran withdrew that request or was given a hearing. Therefore, one must be scheduled. 38 C.F.R. § 3.103(c) (2005). In addition, the record contains a VA Form 21-4142, which is signed by the veteran and dated in March 2003, concerning treatment for a rash in 1998 from the VA Medical Center in Decatur, Georgia. Although VA has a duty to assist a claimant in obtaining evidence to substantiate his claim (see 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2005)), those records are not in the claims file. VA treatment records are deemed to be within the control of VA and should have been included in the record, as they may be determinative of the claim. See Bell v. Derwinski, 2 Vet. App. 492 (1992). On the VA Form 21-4142 is an unsigned notation: "No records 7/15/03." But VA is required to make as many requests as are necessary to obtain relevant records from a VA medical facility. 38 C.F.R. § 159(c)(2). VA may end its efforts to obtain such records only if VA concludes that the records sought do not exist or that further efforts to obtain the records would be futile, for example, when VA is advised that the records do not exist or that the custodian does not have them. Id. Then, VA must provide the veteran with notice that the records are not available. 38 C.F.R. § 159(e)(1). The RO did not comply with the regulation's requirements here. Therefore a remand is necessary for the purpose of obtaining such records, or determining that the records sought do not exist or that further efforts to obtain the records would be futile and so notifying the veteran. Accordingly, the case is REMANDED to the Appeals Management Center (AMC) in Washington, D.C., for the following action: 1. Assist the appellant in obtaining evidence by seeking medical records of the veteran's treatment at VA medical facilities, including the VA Medical Center in Decatur, Georgia. Associate any evidence obtained with the claims folder. If the records are not obtained, document that the records sought do not exist or that further efforts to obtain them would be futile, and inform the veteran pursuant to 38 C.F.R. § 3.159(e). 2. Schedule the veteran for a hearing at the RO, as he requested in his February 2003 notice of disagreement. 3. Thereafter, readjudicate the claim. If any sought benefit is denied, issue the veteran a supplemental statement of the case. After he has been given an opportunity to respond, the claims file should be returned to this Board for further appellate review. 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 Supp. 2006). _________________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2005).