Citation Nr: 0618819 Decision Date: 06/27/06 Archive Date: 06/30/06 DOCKET NO. 03-34 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES Entitlement to service connection for diabetes mellitus with peripheral neuropathy, erectile dysfunction, and diabetic retinopathy. Entitlement to service connection for loss of balance. Entitlement to service connection for memory loss. Entitlement to service connection for arthritis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The veteran served on active duty from February 1959 to April 1962, and from May 1963 to April 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In his correspondence, the veteran appears to have raised the issues of service connection for headaches and hypertension, as well as kidney and bone problems. As no action has been taken on these claims, they are referred to the originating agency for the appropriate action. REMAND The veteran claims that he was subjected to biological testing while assigned to Fort Greely, Alaska from November 1964 to February 1965 as part of Project 112/SHAD (Shipboard Hazard and Defense). He has specified that he participated in West Side I, which occurred in January and February 1965. He also alleges that he was exposed to Agent Orange while assigned to Fort Wainwright and Ft. Greely. According to the veteran, he was also exposed to zinc cadmium sulfide and the bacteria bacillus globigii. He believes that these exposures have caused his diabetes mellitus and loss of memory. The veteran also claims that he injured his back while changing truck tires in July 1965, and that his loss of balance resulted from a tank crash in 1961. After this case was forwarded to the Board, the veteran submitted a copy of a service record showing that he was temporarily ordered to Ft. Greely in November 1964. Although the Compensation and Pension Service has established procedures for developing claims bases on participation in Project 112/SHAD, the record reflects that the RO has not followed those procedures. Additionally, in correspondence submitted by the veteran, he identifies his family doctor and states that he has received treatment from him for diabetes and back pain. As the claims folder does not contain records from the veteran's family doctor, the originating agency should obtain them. The veteran has also stated that he received treatment at the Columbia, South Carolina and Augusta, Georgia VA Medical Centers (VAMCs). While some records from the Augusta VAMC are of record, there are no treatment records from the Columbia VAMC. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). As records in the possession of the VA are deemed to be constructively of record, they must be obtained. Id. Therefore, the originating agency should obtain all pertinent treatment records from both the Augusta and Columbia VAMCs. Finally, the Board notes that the veteran has not been provided the required notice under the VCAA. While the veteran was sent a notification letter in April 2003, this letter is inadequate as it does not provide notice with respect to the disability rating and effective date elements of his claims, nor does it provide information with respect to which portion of the evidence the veteran is to provide and which part VA will attempt to obtain on his behalf. In addition, VA did not request that the veteran provide any evidence in his possession that pertains to his claim. Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, DC for the following actions: 1. The appellant should be provided the notice required under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), to include the notice specified by in Dingess/Hartman v. Nicholson 19 Vet. App. 473 (2006), and notice that he should submit any pertinent evidence in his possession. 2. Then, the RO or the AMC should undertake appropriate development to obtain any pertinent evidence identified but not provided by the veteran. The RO or the AMC should obtain a copy of all pertinent treatment records, not already of record, from the Augusta and Columbia VAMCs. Additionally, the records obtained should include those of the veteran's family doctor. If the RO or the AMC is unsuccessful in obtaining any pertinent evidence identified by the veteran, it should so inform the veteran and his representative and request them to provide the outstanding evidence. 3. The RO or the AMC should attempt to obtain a copy of the veteran's complete service personnel records. 4. In accordance with established procedures, the RO or the AMC should contact the Compensation and Pension Service and request verification of the veteran's participation in Project 112/SHAD and of his alleged exposure to Agent Orange while assigned to Fort Wainwright and Fort Greely, AK. 5. If necessary, the RO or the AMC should prepare a summary of all of the veteran's alleged in-service biological and chemical exposure. This summary, along with a copy of the veteran's DD Form 214 and his pertinent service personnel records, should be sent to the United States Army and Joint Services Records Research Center (JSRRC), King man Building, Room 2C08, 7701 Telegraph Road, Alexandria, Virginia, 22315-3802. JSRRC should be asked to provide any information that might corroborate the veteran's alleged exposures. The RO or the AMC should also take any other action deemed appropriate to verify the veteran's participation in the Project 112/SHAD tests as well as his alleged exposure to Agent Orange. 6. Then, the veteran should be afforded a VA examination to determine the etiology of his claimed disabilities, unless the evidence already of record is sufficient to substantiate the claims. The claims folder and a copy of this Remand must be made available to the examiner for review. Based on the examination results, the review of the claims folder and sound medical principles, the examiner should provide an opinion with respect to each currently present disorder as to whether it is at least as likely as not that the disorder is etiologically related to the veteran's active military service, to include trauma during service and any exposures to toxins during service. The supporting rationale for each opinion expressed must also be provided. 7. The RO or the AMC should also undertake any other development it determines to be warranted. 8. Then, the RO or the AMC should readjudicate the issues on appeal based on a de novo review of the record. If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO or the AMC should issue a supplemental statement of the case and afford the veteran and his representative an appropriate opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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. 2005). _________________________________________________ Shane A. Durkin 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).