Citation Nr: 0810980 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-21 377A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for multiple sclerosis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD E.B. Joyner, Associate Counsel INTRODUCTION The veteran served on active duty from September 1966 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board notes that the RO reopened and then denied the claim seeking service connection for multiple sclerosis. The Board has a legal duty to consider the new and material evidence issue regardless of the RO's actions. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd at 83 Fed.3d 1380 (Fed.Cir. 1996). Thus, the Board must first review the RO determination that new and material evidence has been submitted to reopen the previously denied claim. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In a final decision of June 1987, the Board denied entitlement to service connection for multiple sclerosis based on its determination that the veteran did not have multiple sclerosis in service and because multiple sclerosis was not shown to a compensable degree within the applicable presumptive period. The subsequently received evidence includes VA progress notes showing current treatment for multiple sclerosis, the veteran's statements that he was seen in service for eye problems, fatigue and breathing problems, all of which he believes were the first signs of multiple sclerosis, articles describing how difficult it is to diagnose multiple sclerosis, and two VA examination reports dated in May 1997. The VA eye examination report from May 1997 states that the veteran had no problems with his eyes while serving in the military. The report also states that the veteran was totally healthy during service, with the exception of having had an appendectomy. The diagnostic impression was "essentially normal eye exam with refractive error and presbyopia." The examiner commented, "The patient has none of the hallmarks of multiple sclerosis, as regards his eyes at the present time, except for the right afferent papillary de". The report ends in the middle of the word. The remainder of the report is missing. The veteran's representative has requested that the Board obtain the full VA eye exam report, and the Board agrees. Although it appears that the sentence simply refers to then present symptoms, the Board acknowledges that without a complete record of the medical evidence, the claim cannot be adjudicated. Additionally, while there are service treatment records in the claims folder, the veteran's representative has pointed out that the report of medical history (SF-89) accompanying the separation examination is not of record. Therefore, the RO should make another attempt to obtain that record on remand. Accordingly, the case is REMANDED for the following action: 1. The AMC or the RO should undertake all appropriate development to obtain the veteran's SF-89, the Report of Medical History for separation purposes, dated in May 1970. All efforts to obtain such should be documented, and any negative responses should be recorded and associated with the claims folder. 2. The AMC or the RO should also undertake all appropriate action to obtain the entire VA eye exam report from the VA eye examination on May 28, 1997. All efforts to obtain such should be documented, and any negative responses should be recorded and associated with the claims folder. 3. Then, the AMC or the RO should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the veteran's satisfaction, the veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified, but he has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2007). _________________________________________________ K. J. ALIBRANDO 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) (2007).