Citation Nr: 1032707 Decision Date: 08/30/10 Archive Date: 09/08/10 DOCKET NO. 07-07 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for skeletal conditions, including knees, fractured ribs, a scarred lung, hip, and elbow. REPRESENTATION Appellant represented by: Armed Forces Service Corporation ATTORNEY FOR THE BOARD J. Meawad INTRODUCTION The Veteran served on active duty from January 1977 to August 1984, August 1991 to December 1991, September 1994 to December 1994, and September 1996 to May 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, that denied the above claim. In August 2008, the Board remanded the present matter for additional development and due process concerns. The issue of entitlement to service connection for Charcot-Marie-Tooth Syndrome has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 another remand is necessary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In the previous Board remand, the RO was requested to obtain the Veteran's service treatment records for the dates encompassing his active duty service in 1996 and 1997. It was specifically noted as the basis for the remand that there were no service treatment records for the Veteran's period of service from 1996 to 1997. In addition, a release for information dated January 2006 was submitted referring to an Army hospital in Germany and a private clinic in California. The Board stated in the remand that there was no indication that this release form was completed or mailed to the facilities listed. In response to the RO's October 2008 inquiry for service treatment records for the Veteran's active service from 1996 to 1997, the National Personnel Records Center (NPRC) stated that were no service treatment records at "code 13" for the Veteran. In February 2010, the RO requested the 1996 to 1997 service treatment records from the Records Management Center (RMC). In a March 2010 email, the RMC stated that the service treatment records are not of record at the RMC. It is unclear whether the RO thoroughly researched all possible sources of the Veteran's service treatment records as no formal finding was issued. Therefore, this deficiency must be corrected on remand. Furthermore, there is no indication of record showing that the RO attempted to obtain medical records from Heidelberg Army Hospital in Germany and Auburn Imaging in California, which were listed in the Veteran's January 2006 Form 21-4142 release for information as requested in the Board remand. Therefore, this deficiency must also be corrected. Finally, the Board finds that an examination is needed in this case. The Veteran is currently service connected for myofacial syndrome, which affects his entire body. Regarding the issue on appeal, the Veteran is claiming that he has separate skeletal conditions stemming from a motor vehicle accident that occurred in 1997 while he was serving in Bosnia-Herzegovina. An examination is necessary in order to distinguish the symptoms and resulting disability related to the Veteran's service-connected myofacial syndrome and those related to the claimed skeletal conditions due to the 1997 inservice accident. A medical opinion is also necessary stating whether the separately distinguished skeletal conditions are related to service. See 38 C.F.R. § 3.159 (c)(4) (2009). Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain medical treatment records from Heidelberg Army Hospital in Germany and Auburn Imaging in California. All efforts to obtain these records should be fully documented and the Heidelberg Army Hospital and Auburn Imaging must provide a negative response if records are not available. 2. Undertake all necessary efforts to obtain the Veteran's service treatment records from 1996 to 1997. If those records cannot be located, a formal finding of unavailability must be issued and associated with the claims file. 3. Following completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of any current skeletal conditions, including knees, fractured ribs, a scarred lung, hip, and elbow. The claims file must be made available to the examiner for review prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. Based on the examination and review of the record, the examiner is requested to provide an opinion as whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that any currently diagnosed skeletal condition had its onset during active service or is related to any in- service disease or injury; to include the claimed inservice 1997 accident. The examiner is also asked to distinguish, to the extent possible, between symptomatology resulting from the Veteran's service-connected myofacial syndrome and the claimed skeletal conditions. If it is medically impossible to distinguish among symptomatology resulting from the disabilities, the examiner should state this in the examination report. A detailed rationale for any opinion expressed should be provided. 4. Thereafter, readjudicate the Veteran's claim on appeal, with application of all appropriate laws and regulations and consideration of any additional information obtained. If the decision with respect to the claim remains adverse to the appellant, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ M. E. LARKIN 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).