Citation Nr: 1120789 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 06-14 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for walking pneumonia. 2. Entitlement to service connection for residuals of a fall and electrocution. 3. Entitlement to service connection for loss of brain function and body mechanics, including at secondary to herbicide exposure. WITNESSES AT HEARING ON APPEAL Appellant, A.C., and D.S. ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from October 1963 to October 1966. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2005 rating decision by the Honolulu, Hawaii Regional Office (RO) of the United States Department of Veterans Affairs (VA). In August 2008 and October 2009, the Board remanded the case for additional procedural action and evidentiary development. 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 While there has been substantial compliance with the prior remands, the Board finds that additional development is still warranted. During VA treatment in November 2003, the Veteran stated that he was denied disability income from the Social Security Administration (SSA). In a January 2006 statement, the Veteran referred to documentation in his SSA decision. A January 2006 SSA decision included in the claims folder makes reference to some medical documentation; however, it is unclear whether all records considered by SSA have been requested. As such, the RO should attempt to obtain the Veteran's records from SSA on remand. 38 C.F.R. § 3.159(c)(2010); see Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Hayes v. Brown, 9 Vet. App. 67 (1996). In response to the RO's inquiry for service treatment records, the National Personnel Records Center (NPRC) sent a response in December 2002 stating that the requested records were mailed. In February 2005, the Department of Navy sent a letter to the Veteran stating that medical records were lost at school in Camp Pendleton, California, and a replacement record was opened on June 25, 1965; therefore, any treatment records prior to that date were not on file. The claims folder includes reports of enlistment and period medical examinations dated prior to June 1965, but no treatment records. 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. Finally, the Board finds that a VA examination is necessary for the claims for service connection for residuals of a fall and electrocution and for loss of brain function and body mechanics. The Veteran was denied service connection for post-concussion syndrome in a July 2007 rating decision and that issue is not currently on appeal. The Veteran's private physician, Dr. V.C.K., had diagnosed the Veteran with mild cognitive impairment, tremors in the hands, sensory predominant peripheral neuropathy, ataxia, and organic brain syndrome, and attributed these conditions to the Veteran's service. In addition, Dr. V.C.K. also stated that the Veteran was repeatedly exposed to Agent Orange during service and that he might have a neurological disorder caused by that exposure. In light of these findings, an examination is necessary in this case in order to determine the etiology of the Veteran's claimed conditions. 38 C.F.R. § 3.159 (c)(4). Such an opinion is necessary for a determination on the merits of the claim. See 38 C.F.R. § 3.159 (c)(4). Accordingly, the case is REMANDED for the following action: 1. Contact SSA and request a copy of any SSA decision regarding disability benefits for the Veteran. Request from SSA copies of all the documents or evidentiary material that was used in considering the Veteran's claim for disability benefits. 2. Undertake all necessary efforts to obtain the Veteran's service treatment records prior to June 1965. 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 residuals of a fall or electrocution and any loss of brain function and body mechanics. 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 residuals of a fall or electrocution and any loss of brain function and body mechanics had their onset during active service or are related to any in-service disease or injury, including herbicide exposure. The examiner is also asked to distinguish, to the extent possible, between symptomatology resulting from the Veteran's claimed residuals of a fall or electrocution and any loss of brain function and body mechanics, and post-concussion syndrome, which was previously denied and is currently not before the Board on appeal. 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 claims on appeal, with application of all appropriate laws and regulations and consideration of any additional information obtained. If the decision with respect to the claims 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 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ 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) (2010).