Citation Nr: 1129455 Decision Date: 08/10/11 Archive Date: 08/24/11 DOCKET NO. 05-32 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of a rib cage injury. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of a head injury. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Millikan, Counsel INTRODUCTION The Veteran served on active military duty from September 1971 to August 1973 and served a second period of service from January 1974 to September 1977 with an other than honorable discharge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2011, the Veteran testified at the El Paso, Texas RO in a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The Board notes that the Veteran submitted a February 2011 substantive appeal regarding the issues of entitlement to service connection for posttraumatic stress disorder, a right knee disorder, back disorder, right ankle disorder, left ankle disorder, left knee disorder, and a right shoulder disorder, a claim to reopen the issue of entitlement to service connection for sleep apnea, entitlement to special monthly pension, and entitlement to automobile and/or adaptive equipment. The Veteran's representative clarified that he and the Veteran were not prepared to address these issues, that the issues were still undergoing development by the RO, and that the issues had not yet been certified to the Board by the RO. It was agreed that testimony would not be taken regarding these issues and that the issues were not properly before the Board at that time. Therefore, the Board concludes that it does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action, to include whether an additional Board hearing has been requested. The issue of whether the Veteran's character of discharge from his second period of service is a bar to VA benefits has been raised by the Veteran in numerous submissions associated with the claims file. The Veteran has noted that he was AWOL for only 130 days and that his psychological difficulties began as a result of the head injury that occurred during that second period of service. This issue was adjudicated in a November 1978 administrative decision, but has not been addressed since that time. Therefore, the Board does not have jurisdiction over it, and it is referred to the Agency of Original Jurisdiction for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although the Board sincerely regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. Remand is required to attempt to obtain VA medical records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including VA medical records. 38 C.F.R. § 3.159(c)(2). At a January 2009 RO hearing, the Veteran stated that he sought treatment for the residuals of the head and rib cage injuries after service discharge at VA medical centers in Albuquerque, New Mexico, Wichita, Kansas, and Big Spring, Texas. In April 2011, the Veteran testified that about two weeks after he separated from service, he was hospitalized at a VA medical center and was issued a brace for his rib cage and neck. These records do not appear to be associated with the claims file and negative responses from the VA medical centers are not of record. Accordingly, remand is required to attempt to obtain these records. Accordingly, the case is REMANDED for the following action: 1. Contact the VA facilities located in Albuquerque, New Mexico, Wichita, Kansas, and Big Spring, Texas, and obtain and associate with the claims file all outstanding records of treatment. The AMC must request all treatment records beginning in 1977. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran and his or her representative. The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA will take regarding the claim and a notice that the Veteran is ultimately responsible for providing the evidence. The AOJ should also inform the Veteran that he can also provide alternative forms of evidence. Associate all documents obtained with the claims file. 2. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ 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) (2010).