Citation Nr: 0811906 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-12 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a left elbow disability. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder, claimed as attributable to an assault during service. ATTORNEY FOR THE BOARD J. Johnston, Counsel INTRODUCTION The veteran had active military duty from October 1976 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. There is a power of attorney on file for the veteran's representation by the Military Order of the Purple Heart, but in July 2006, this organization reported that they were unaware of how this power of attorney was obtained since nobody from that organization had ever had any contact with the veteran. They withdrew their representation. For the reasons described below, this case is remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND Initially, the Board notes that the veteran's VA claims folder, in existence prior to his March 2005 pending claim, has been lost or misplaced, and it is reported by the RO that there were prior adjudications. It is clear that the May 2005 VCAA notice, August 2005 rating decision on appeal, and February 2006 Statement of the Case reported a prior final, unappealed rating decision denying service connection for left elbow disability, and the RO found no new and material evidence to reopen the claim. However, the Board is unable to determine from the current record whether there was a prior final unappealed rating decision denying service connection for psychiatric disability. It is unclear from the VCAA notice, the August 2005 rating decision appears to be an initial adjudication on the merits, but the February 2006 Statement of the Case (SOC) appears to indicate that there was a prior unappealed final adjudication denying psychiatric disability. The SOC indicates that sufficient evidence had been submitted to reopen this claim, again indicating a prior final denial. In any event, the Board finds that, to the extent that there were prior final denials in this case, the May 2005 VCAA notice to the veteran is inadequate to comply with the specificity requirements reported in Kent v. Nicholson, 20 Vet. App. 1 (2006). At page two of this notice, the veteran was informed that his claim was previously denied because "Reason for previous denial." This was obviously a computer generated form, and although attempts were made to describe previous final denials in the subsequent rating decision and SOC, there is an essential absence of any objective evidence of those prior final denials on file in the record as it exists. If there was some form of computer or other objective record giving at least some amount of details on these prior final denials, the RO should have included them in the claims folder together with some sort of administrative finding summarizing the details objectively verified. There is documentation at the beginning of the existing claims folder indicating that a search for the veteran's existing claims folder was made without success. There is also indication that his claims folder may have been retired in 2003, but that responses from NPRC were negative for the file. Because the claim must be remanded for various procedural reasons, another search for this file must be conducted on remand. In this regard, the Board would point out that there are on file several misfiled documents belonging to another veteran (MLB)(tabbed in yellow), also apparently under the supervisory responsibility of the Detroit RO, and it would seem prudent to not only restore these records to MLB's folder, but also to check MLB's folder to see if there are any records of the veteran which have been mistakenly placed in MLB's folder. In addition to attempting to find the veteran's claims folder with included service medical records, there is reference in the file to earlier treatment of the veteran by VA in the 1980's, but these records do not appear to be associated with the claims folder. Additionally, the veteran has reported that he injured his elbow during service, and was treated therefore while apparently on leave, some time in 1968-69, at a Bronson Hospital, in Kalamazoo MI. The veteran further reported that he received follow-on treatment during his final assignment the Navy Hospital located at NRMC in Jacksonville, Florida. Although there is not documentation in the file, there is reference to the veteran being separated for cause prior to his ordinary enlistment for not only unsuitability or disciplinary infractions, but perhaps for a personality disorder and if this is the case, the veteran may have been examined at that same Navy hospital in Jacksonville, Florida. Accordingly, a request for production of any inpatient or outpatient treatment records and psychiatric records directly to the Navy Hospital in Jacksonville, Florida, must be made. Accordingly, the case is REMANDED for the following action: 1. Initially, the RO should again initiate a search for the veteran's missing claims folder, including service medical records. It has been three years since the previous search, and perhaps the folder can now be located. This should include a search at the local RO and another request to NPRC. Misfiled records in the claims folder should be moved to the correct folder, and the latter checked for records of the veteran. 2. The RO should contact the veteran and request that he provide properly completed medical release forms for any treatment for his left elbow and psychiatric disability which are not already on file with an eye toward producing the earliest available treatment records for either disability. This should at a minimum include a properly completed medical release form for alleged private treatment for a left elbow injury some time in 1978-9 at the Bronson Hospital in Kalamazoo, Michigan. The veteran should also be requested to submit copies of any service medical records he may have in his possession. Any records obtained should be added to the claims folder. 3. The RO should process a request to the Navy Hospital co-located with the veteran's final unit of assignment as documented in his service personnel records as NRMC, Jacksonville, Florida, for any records they may have reflecting treatment of the veteran for any purpose during his apparent assignment there from March through August 1979. This would include any outpatient treatment records, hospitalization records, and must specifically include a request for any records of psychiatric treatment or evaluation (which are often times maintained separately from other patient records). Any records obtained must be added to the claims folder. 4. After completing the above development, the RO should again review the evidence on file. If there is sufficient evidence to determine that there have been prior final denials on either or both of the pending claims, then the veteran should be provided proper VCAA notice with the requisite specificity regarding the evidence necessary to reopen a previously denied final claim which complies with Kent v. Nicholson, 20 Vet. App. 1 (2006). If the claims folder and service medical records remain unavailable, and the RO believes it has sufficient evidence to document one or more prior final denials, it must create a memo for record or other document which lays out all of the known facts (and to which is attached all objective evidence or computer print outs supporting such memo for record). If, on the other hand, there remains insufficient evidence to adequately document the existence of prior final denials which are sufficient to provide objective notice to the veteran of the basis for prior final denials and the evidence necessary to reopen, then the RO must as a matter of due process readdress these claims entirely on the merits in a de novo review of the evidence without regard to or reliance on any prior final denial. In either case, proper VCAA notice must request the veteran to provide evidence of an inservice elbow injury, evidence of a current left elbow disability with identifiable pathology of the elbow, and a link established by medical evidence relating current left elbow disability to an injury in service. With respect to the veteran's claim for service connection for an acquired psychiatric disorder secondary to an assault during service, he must be advised that the evidence necessary to substantiate his claim would be objective evidence establishing that the assault as reported actually occurred. He should be provided a list of the types of evidence which may be used to substantiate such assault consistent with standard language used in psychiatric/assault cases. His own restatement of recollection of the incident would be redundant and cumulative with evidence already on file and the veteran's mother's statement from November 2000 which reports that the veteran only told her of this incident in 1996 is certainly of limited value since it is based entirely on the veteran's own report. The veteran must also be informed that the evidence necessary to substantiate and/or reopen this claim would be evidence of current psychiatric disability which includes a competent clinical opinion which relates such disability to events of military service. The veteran must be provided the opportunity to respond and the RO should assist him in collecting evidence he might reasonably identify. Any evidence obtained must be added to the claims folder. 5. After completing the above development, the RO should again review the evidence on file. If, and only if, there is then evidence which satisfies the requirements of VCAA at 38 U.S.C.A. § 5103A(d), then the RO in its discretion, should consider whether or not scheduling of a VA examination with claims folder review and a request for opinions is necessary and proper. Again, this development would only be warranted if there was objective evidence of incident or injury or diagnosis in service, and current disability at present, and insufficient evidence on file regarding nexus. If examinations are obtained they must be included in the file. 6. After completing the above development, the RO should again address the claims on appeal. If any decision is not to the veteran's satisfaction, he must be provided a Supplemental Statement of the Case which includes a discussion of the development requested in this remand and of proper VCAA compliance. He must be provided an opportunity to respond. The case should then be returned to the Board after compliance with appellate procedures. The veteran need do nothing until or unless notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ F. JUDGE FLOWERS 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).