Citation Nr: 0006853 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 98-17 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the right hip. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for degenerative joint disease of the cervical and lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.A. Skow, Counsel REMAND The appellant had active duty from May 1943 to January 1946. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a July 1998 rating decision of the Montgomery, Alabama, Department of Veterans Affairs Regional Office (VARO). the United States Court of Appeals for Veterans Claims recently issued a decision holding that VA cannot assist a claimant in developing a claim that is not well grounded. Morton v. West, 12 Vet.App. 477 (1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curium). However, an exception to this rule exists for those records in VA's custody. We note that VA medical center records are the type of records deemed to be in VA's custody and, therefore, these records must be requested in all cases where VA is given notice of such treatment. 38 U.S.C.A. § 5103 (West 1991); Counts v. Brown, 6 Vet. App. 473, 476 (1994); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (the Board is on constructive notice of all documents which are in the custody and control of this Department); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, as the appellant has reported treatment at VA medical centers in Biloxi, Gulfport, Tuskeegee, and Houston, any VA records of treatment at these facilities must be obtained and associated with the claims folder. In view of the above, the case is REMANDED to VARO for the following action: 1. VARO should request all records of treatment for the appellant located at the Biloxi, Gulfport, Tuskeegee, and Houston VA Medical Centers since 1946. All responses to this request and records obtained must be associated with the claims folder. 2. After the development requested above has been completed to the extent possible, VARO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. This claim must be afforded expeditious treatment by VARO. 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 (known as the United States Court of Veterans Appeals prior to March 1, 1999) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the VAROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. C.P. RUSSELL Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).