Citation Nr: 0005335 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-12 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for morphea, claimed as soft tissue sarcoma, claimed as a residual of Agent Orange exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Associate Counsel INTRODUCTION The veteran's active military service extended from June 1962 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. That rating decision denied service connection for morphea which the veteran had claimed as soft tissue sarcoma. REMAND The law provides that "a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991). Establishing a well grounded claim for service connection for a particular disability requires more than an allegation that the disability had its onset in service or is service-connected; it requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible and capable of substantiation. See Franko v. Brown, 4 Vet. App. 502, 505 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The three elements of a "well grounded" claim are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). In the case of an Agent Orange related claim, when a veteran served in the Republic of Vietnam during the Vietnam era, competent medical evidence of the existence of a current presumptive disease within the presumptive period of time for service connection is sufficient to render the claim for service connection for the presumptive disease well grounded. Brock v. Brown, 10 Vet. App. 155, 162 (1997). In the present case, review of the evidence of record does not reveal a well grounded claim. However, VA is on notice as to the existence of VA and other government records which have not been associated with the claims file. The veteran alleges that he has received treatment for a skin disorder since approximately 1972 from the VA medical centers (VAMC) in Gainesville, Florida and Orlando, Florida. The veteran's representative requested some of these records. However, the RO did not attempt to obtain all of these records. This must be done. Records generated by VA are constructively included within the record. If records of VA treatment are material to the issue on appeal and are not included within the claims folder, a remand is necessary to acquire such VA records. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board also notes that the RO has not requested the veteran's service medical records. This must be done. VA's duty to assist is heightened when records are in the control of a government agency. Gobber v. Derwinski, 2 Vet. App. 470 (1992). The case is REMANDED to the regional office (RO) for the following development: 1. The RO should attempt to secure the veteran's service medical records through official channels including requesting them from the National Personnel Records Center (NPRC). 2. The RO should request all medical treatment records relating to the veteran from VAMC Gainesville, Florida and VAMC Orlando, Florida from 1972 to present. 3. Subsequently, the RO should consider the issue on appeal. In this regard, the RO should give full consideration to whether the claim is well grounded. Once the foregoing has been accomplished and, if the veteran remains dissatisfied with the outcome of the adjudication of the claim, both the veteran and his representative should be furnished a supplemental statement of the case covering all the pertinent evidence, law and regulatory criteria. They should be afforded a reasonable period of time in which to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran needs to take no action until so informed. The purpose of this REMAND is to obtain missing government records. The Board intimates no opinion as to the ultimate outcome of this case. Further adjudication of the question involving service connection for morphea, claimed as soft tissue sarcoma, will be postponed until the remand action is completed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 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. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs 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. BETTINA S. CALLAWAY 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)