Citation Nr: 1003258 Decision Date: 01/22/10 Archive Date: 02/01/10 DOCKET NO. 07-24 996 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for headaches. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right eye disorder. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his daughter ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran had active service from June 1953 to April 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 RO rating decision that determined that new and material evidence had not been received to reopen claims for entitlement to service connection for headaches and for a right eye disorder. By this decision, the RO also denied service connection for post-concussion syndrome. In an October 2007 statement, the Veteran expressly withdrew his claim for entitlement to service connection for post- concussion syndrome. Therefore, that issue is no longer on appeal. In November 2009, the Veteran testified at a Travel Board hearing at the RO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to his claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). At the November 2009 Board hearing, the Veteran testified that he received recent treatment for his claimed headaches and right eye disorder at the Milwaukee, Wisconsin VA Medical Center; the Iron Mountain, Michigan VA Medical Center; and the Menominee, Michigan VA Outpatient Clinic. He specifically stated that he was treated at a VA facility the previous day. The Veteran's representative indicated that those treatment records needed to be requested. The Board observes that the most recent VA treatment reports of record are dated in August 2008. As there are possible further treatment records, including possibly VA treatment records, that may be pertinent to the Veteran's claims, they should be obtained. See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). If any of the VA treatment records show a possible relationship between the Veteran's claimed headaches and right eye disorder and his period of service, the Veteran should be scheduled for a VA examination with the opportunity to obtain a responsive etiological opinion, following a review of the entire claims folder, as to his claims. Additionally, the Board notes that in January 2010, the Veteran submitted a new power-of-attorney form (VA Form 21-22 in which he has appointed the Wisconsin Department of Veterans Affairs as his representative. The Board observes, however, that it does not appear that the Veteran's representative has had the opportunity to review the claims file and provide a Statement of Accredited Representative in Appealed Case (VA Form 646), prior to certification to the Board. Thus, the Veteran's representative must be given an opportunity to offer written argument on the Veteran's behalf and this argument should be considered by the RO. 38 C.F.R. §§ 3.103(e), 20.600 (2009). Accordingly, the case is REMANDED for the following: 1. Obtain copies of the Veteran's VA treatment records, which are not already in the claims folder, concerning his claimed headaches and right eye disorder, and dated since August 2008, from the Milwaukee, Wisconsin VA Medical Center; the Iron Mountain, Michigan VA Medical Center; and the Menominee, Michigan VA Outpatient Clinic. 2. Ask the Veteran to identify all other medical providers who have treated him for headaches and right eye problems since August 2008. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. 3. Forward the Veteran's claims folder to the Wisconsin Department of Veterans Affairs for that service organization to submit written argument (on VA Form 646, or equivalent) on behalf of the Veteran with respect to his claims. 4. If such records are obtained and indicate a possible relationship between the Veteran's claimed headaches and right eye disorder and his period of service, schedule the Veteran for a VA examination to determine the nature and likely etiology of his claimed headaches and right eye disorder. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. Based on a review of the claims file, examination of the Veteran, and generally accepted medical principles, the examiner should provide a medical opinion, with adequate rationale, as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that any diagnosed headaches and right eye disorder are etiologically related to the Veteran's period of service. 5. Thereafter, readjudicate the Veteran's claims as to whether new and material evidence has been received to reopen claims for entitlement to service connection for headaches and for a right eye disorder. If any benefit sought remains denied, issue a supplemental statement of the case to the Veteran and his representative, and provide an opportunity to respond before the case is returned to the Board. 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). These claims 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. 2008). _________________________________________________ DENNIS F. CHIAPPETTA 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) (2009).