Citation Nr: 0006344 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 98-04 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a disorder of the spine and limbs. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his daughter ATTORNEY FOR THE BOARD C. Trueba-Sessing, Associate Counsel INTRODUCTION This case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The veteran served in active service from March 1945 to May 1947. Additionally, the Board notes that, in a January 1998 VA form 21-4138 (Statement in Support of Claim) and during the June 1998 appeal hearing at the RO, the veteran and his daughter reported the veteran was diagnosed with right wrist arthritis during his service, as well as that he currently suffers from the same type of arthritis in various joints. The veteran also stated at his hearing that his arthritic conditions were caused by his service-connected right wrist disability. Thus, the Board construes such statements as a request for consideration of a claim for service connection for generalized arthritis, to include as secondary to a service- connected right wrist disability. As the only issue currently before the Board is that set forth on the title page of this decision, this matter is referred to the RO for appropriate action. REMAND In an October 1997 rating decision, the RO framed the issue on appeal as service connection for cervical stenosis with radiculopathy, although it acknowledged the veteran's original claim was for service connection for "[w]hole body . . . back severely affected, legs, back and all . . . limbs." See April 1997 VA form 21-4138 (Statement in Support of Claim). However, the Board also notes that, in the January 1998 Notice of Disagreement, and during the June 1998 appeal hearing at the RO, the veteran indicated he has problems, including pain and arthritis, from his lumbar spine up to his upper extremities. As such, the Board has reframed the issue for consideration to entitlement to service connection for a disorder of the spine and limbs. See Myers v. Derwinski, 1 Vet. App. 127 (1991). In this regard, the record includes a November 1971 VA examination report noting the veteran reported that six years prior to that examination he underwent a lumbar laminectomy secondary to intervertebral disc syndrome, which was performed at the Lexington VA Medical Center (VAMC). In addition, December 1996 notations from the Lexington VAMC note the veteran's diagnoses included status post ruptured lumbar disc removal secondary to trauma in 1962. However, there is no indication in the claims file that the RO has attempted to obtain such VA medical records. The VA is deemed to have constructive knowledge of those records and, in this case, has actual knowledge of the existence of those records. As such, they are considered to be evidence that is of record at the time any decision is made, and should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). See also VAOPGCPREC 12-95, 60 Fed. Reg. 43186 (1995) ("...an [agency of original jurisdiction's] failure to consider records which were in VA's possession at the time of the decision, although not actually in the record before the AOJ, may constitute clear and unmistakable error....") Therefore, in order to give the appellant every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is necessary. Accordingly, this case is REMANDED for the following action: 1. The RO should obtain and associate with the claims file all treatment records pertaining to the veteran from the Lexington VA Medical Center Lexington dated from 1960 to 1969. 2. The RO should undertake any other necessary development and then readjudicate the issue on appeal, now framed as entitlement to service connection for a disorder of the spine and limbs. If the determination remains adverse to the veteran, he should be furnished with a Supplemental Statement of the Case and be afforded an opportunity to respond thereto. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence he desires to have considered in connection with his current appeal. He 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). However, no action is required of the veteran until he is notified. NADINE W. BENJAMIN Acting 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).