Citation Nr: 9923014 Decision Date: 08/13/99 Archive Date: 08/24/99 DOCKET NO. 95-32 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for residuals of neck injury. 2. Whether new and material evidence has been received to reopen the claim for service connection for residuals of back injury. 3. Entitlement to service connection for residuals of head injury. REPRESENTATION Appellant represented by: John C. Betts, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The appellant served on active duty from January 1960 until February 1964. This case comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from June 1995 and April 1996 rating decisions of the St. Louis, Missouri Regional Office (RO). In a decision issued in January 1998, the Board declined appellate jurisdiction of the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of a back injury, found new and material evidence had not been received to reopen a claim of entitlement to service connection for residuals of a neck injury, and denied entitlement to service connection for residuals of a head injury. The veteran appealed the January 1998 Board determinations to the United States Court of Appeals for Veterans Claims (the Court). In January 1999, counsel for the appellant and VA filed a "Joint Motion for Remand and For a Stay of the Briefing Schedule" pending a ruling on the motion. An Order of the Court dated in January 1999 granted the joint motion and vacated the Board's decision of January 22, 1998. The case was remanded for further development and disposition in accordance with the Court's Order. REMAND The Court's Order and the Joint Motion for Remand directed the Board to "refer the case to the RO to obtain a determination as to whether new and material evidence has been submitted for appellant's back and neck injury claims, and whether the head injury condition is service-connected (sic)." The Board was further directed to "assist the appellant in developing the head injury claim, and in developing the neck and back injury claims if it determines new and material evidence has been submitted to reopen the neck and back injury claims. Such assistance should include assisting appellant in gathering additional evidence, including the motor vehicle accident report, medical records of appellant's 51 day hospitalization at the George AFB hospital from November 28, 1963 until January 17, 1964 and the records concerning appellant's social security claim." This case is hereby REMANDED to the RO for the following actions: 1. As stipulated in the Court's Order, the RO should contact the appropriate sources to obtain the motor vehicle accident report from the veteran's accident in November 1963, and the records concerning the appellant's Social Security claim. The George AFB Hospital should be contacted directly to obtain medical records of the appellant's hospitalization there between November 1963 and January 1964. 2. The veteran should be contacted and requested to: (a) submit any additional evidence or argument relative to the issues on appeal he deems warranted; and (b) provide the names and addresses of any and all physicians and/or providers who have treated him for residuals of neck, back or head injury, to include psychiatric manifestations, since service discharge. After receipt of any information in this regard, these records should be requested and associated with the claims folder, if not already of record. 3. The veteran testified in October 1995 that within a few months after he was discharged from service, he sought treatment at the VA in Chicago, Illinois. (Transcript at page 5.) In this regard, records dating back to February 1964 should be requested from that facility and associated with the claims folder. 4. The RO should then schedule the appellant for a period of observation and examination at a VA facility for evaluation by a board-certified orthopedist, neurologist and psychiatrist, who have not seen him previously, if possible, in order to determine whether there are any residuals of head, back or neck injury related to the veteran's automobile accident in November 1963. The examiners must be provided with the appellant's claims folder and a copy of these remand instructions for review prior to conducting the examinations. The examination reports should clearly reflect whether a review of the claims folder was performed. All necessary tests and studies, including psychological testing if indicated, should be performed, and all clinical manifestations should be reported in detail. Based on a review of all medical documentation and history on file, including the service medical records, the examiners should: (1) discuss and reconcile the prior opinions which have been rendered in this case with respect to the origins of the diagnosis of organic brain syndrome, headaches or depression, to include by Dr. James Loutzenhiser on VA neurologic examination in December 1995, and as medical history by Richard A. Phil, CAPT., USAF, MC, EMO, in a "Report of Medical Examination" dated January 27, 1964; and (2) provide an opinion as to the likelihood that current orthopedic, neurologic and psychiatric conditions were initially manifested as the result of the appellant's automobile accident in 1963, or are otherwise related to service or any other causes. (Any psychiatric diagnosis should conform to the psychiatric nomenclature and diagnostic criteria contained in DSM- IV.). The examination reports should set forth in a clear, comprehensive, and legible manner all pertinent findings, and should include complete rationale for the opinions expressed. In particular, all terms used in assessing the appellant's disabilities should be free of ambiguity. The examination reports should be returned in a legible narrative format. 5. Following completion of the foregoing, the RO must review the claims folder and ensure that the requested development has been completed in full. If the examination reports do not include fully detailed descriptions of pathology or adequate responses to the specific opinions requested, the reports must be returned to the examiner for corrective action. 38 C.F.R. § 4.2 (1998). 6. The appellant should be given adequate notice of the examination, to include advising him of the consequences of failure to report. If he fails to appear for the examination, this fact should be noted in the claims folder and a copy of the examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims folder. 7. Following completion of the requested development, the agency of original jurisdiction should undertake any additional development of the evidence deemed warranted, and readjudicate the claims of whether new and material evidence has been received to reopen the claims of entitlement to service connection for residuals of neck and back injuries in light of Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), and readjudicate the issue of entitlement to service connection for residuals of a head injury. If action remains adverse to the appellant, he should be furnished a supplemental statement of the case and be given the opportunity to respond. The case should then be returned to the Board for further appellate consideration. No action on the part of the appellant is required until he receives further notice. The Board intimates no opinion, either favorable or unfavorable, as to the ultimate disposition of the issues on appeal. 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. U. R. POWELL Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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) (1998).