Citation Nr: 0326968 Decision Date: 10/09/03 Archive Date: 10/20/03 DOCKET NO. 99-04 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased rating for hearing loss 2. Entitlement to an increased rating for flat feet. 3. Entitlement to service connection for residuals of a head injury. 4. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Crowley, Counsel REMAND On July 17, 2002, the Board of Veterans' Appeals (BVA or Board) ordered further development in your case. Thereafter, your case was sent to the Board's Evidence Development Unit (EDU), to undertake the requested development. Prior to May 1, 2003, the Board's regulations provided that if further evidence, clarification of the evidence, correction of a procedural defect, or any other action was essential for a proper appellate decision, a Board Member or panel of Members could direct Board personnel to undertake the action essential for a proper appellate decision. See 38 C.F.R. § 19.9(a)(2) (2002). However, on May 1, 2003, the United States Court of Appeals for the Federal Circuit ("Federal Circuit") invalidated 38 C.F.R. § 19.9(a)(2), in Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (hereinafter "DAV"). The Federal Circuit held that 38 C.F.R. § 19.9(a)(2), in conjunction with the amended rule codified at 38 C.F.R. § 20.1304, was inconsistent with 38 U.S.C. § 7104(a), because 38 C.F.R. § 19.9(a)(2), denies appellants "one review on appeal to the Secretary" when the Board considers additional evidence without having to remand the case to the agency of original jurisdiction (AOJ) for initial consideration, and without having to obtain the appellant's waiver. Following the Federal Circuit's decision in DAV, the General Counsel issued a precedential opinion, which concluded that DAV did not prohibit the Board from developing evidence in a case before it, provided that the Board does not adjudicate the claim based on any new evidence it obtains unless the claimant waives initial consideration of such evidence by first-tier adjudicators in the Veterans Benefits Administration (VBA). VAOPGCPREC 1-03. Based on this opinion, the Board continued, for a short time, to request development via the Board's EDU. Recently, in light of the Federal Circuit Court's decision and other policy considerations, the Department of Veterans Affairs (VA) determined that VBA would resume all development functions. In other words, aside from the limited class of development functions that the Board is statutorily permitted to carry out, see 38 U.S.C.A. §§ 7107(b), 7109(a), all evidence development will be conducted at the regional office (RO) level. In the event that you appeared at a hearing before a Veterans Law Judge (VLJ) other than the VLJ signing this remand, be advised that if your case is returned to the Board, it will be reassigned to the VLJ who conducted your hearing. Accordingly, this matter is REMANDED to the RO for the following: 1. Begin a new claims folder: Remove the VAMC records; and the service department records received January 2003; from claims folder number one, and insert them into claims folder number two. 2. Ensure the following is complete: Contact the appropriate State or Federal agency and obtain verification of the veteran's periods of active duty with the Air Force of August-November 1969, and December 1971 to November 1972. (Keep in mind that the DD 214 appears to be wrong as to the date of entry into active service.) These records should include records relating to the grant of a hardship discharge from the Air Force in November 1972. If no such service personnel records can be found, or if they have been destroyed, ask for specific confirmation of that fact. 3. Ensure the following is complete: The veteran allegedly received in-patient treatment in service for a head injury sometime between October 1, 1972 and November 15, 1972 at the George USAF Hospital at the George AFB in Victorville, California. Contact the National Personnel Records Center (NPRC), or any other appropriate agency, and request all available clinical records of this treatment. If no such records can be found, or if they have been destroyed, ask for specific confirmation of that fact. The veteran allegedly received psychiatric treatment in service from Captain Arthur P. Moser, Chief of the Mental Health Services at the George AFB Hospital in Victorville, California between May and October of 1972. Contact the National Personnel Records Center (NPRC), or any other appropriate agency, and request all available records of this treatment. If no such records can be found, or if they have been destroyed, ask for specific confirmation of that fact. Contact the Arkansas Air National Guard or other appropriate agency and obtain verification of the veteran's periods of active duty, ACDUTRA and INACDUTRA with the Arkansas Air National Guard between June 19, 1969 and January 4, 1972. Please be aware that the AR ANG transferred the veteran from the Air National Guard to the Air Force Reserve on January 4, 1972, and thus the veteran's ANG medical and/or personnel records may have wound up with the Air Force Reserve. Useful addresses: George USAF Hospital George Air Force Base Victorville, California 92392 Arkansas Military Department Office of the Adjutant General Arkansas Air National Guard 189th CAMRON P.O. Box 1211 Jacksonville, AR 72076 4. Obtain records from the Social Security Administration: all records listed on the List of Exhibits associated with the May 1997 ALJ decision that granted disability benefits, as well as all medical records associated with any subsequent decision to continue benefits. 5. The record indicates that the veteran received pertinent treatment from the private providers listed below. Make arrangements to obtain all treatment records. D. Kenneth Counts, Ph.D. 7520 Hwy 107 Sherwood, AR 72120 For the period from 1994 to the present. B. A., Inc. Christian Counseling Center, Inc. 2909 Kavanaugh Blvd. Little Rock, Arkansas 72205 To include group counseling records and individual counseling records from Thomas "Mac" Smith from June 1994 to the present. Gilbert C. Evans, M.D. 1518 North Main Street North Little Rock, AR 72114 For all medical records dated from 1999 to the present. 6. Ask the veteran to provide information concerning the car accident in which he injured his neck in June 1970, including where he received medical treatment and all details concerning any associated legal action, to include how to contact his attorney at the time, Pete Wiggins (Pyramid Life Bldg, Little Rock). 7. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal remains denied, the appellant and representative, if any, 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. 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 2002) (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. R. GARVIN 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) (2002).