Citation Nr: 1209770 Decision Date: 03/15/12 Archive Date: 03/28/12 DOCKET NO. 10-38 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for ear problems. 2. Whether new and material evidence has been received to reopen a claim of service connection for hypertension, claimed as elevated blood pressure. 3. Whether new and material evidence has been received to reopen a claim of service connection for tinnitus. 4. Whether new and material evidence has been received to reopen a claim of service connection for hearing loss. 5. Whether new and material evidence has been received to reopen a claim of service connection for headaches, also claimed as a head condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1951 to January 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 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 VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In October 1976, the RO requested the Veteran's service treatment records from the National Personnel Records Center (NPRC), including treatment records from Wiesbaden Air Base in Germany and the Veteran's enlistment examination. In December 1976, NPRC informed VA that the requested records were not on file at NPRC and the records may have been destroyed in a July 1973. The RO notified the Veteran that his service treatment records were not located and requested that the Veteran submit any service treatment records in his possession. In February 2011, VA sent another request to NPRC for active duty inpatient clinical records from the U.S. Air Force (USAF) Hospital in Wiesbaden, Germany, dated from April 1952 to June 1952. In a February 2011 response, NPRC reported that Army or Air Force records from the period requested were destroyed in the 1973 fire at NPRC. In a February 2011 memo to the file, VA determined: "All efforts to obtain the needed treatment records [outpatient clinical records from the USAF Hospital in Wiesbaden, Germany from April 1952 to June 1952] have been exhausted; further attempts are futile and that, based on these facts, the record is not available." The Veteran was notified that his service treatment records were destroyed in a fire in an August 2011 letter from the RO. In Dixon v. Derwinski, 3 Vet.App. 261 (1992), the Court held that an inability to find service treatment records results in enhanced duty to assist. When a claimant's service treatment records have been destroyed or lost, the Board is under a duty to advise the claimant to obtain other forms of evidence, such as lay testimony or other documents created while he was in service, to support his claim. Although the August 2011 letter from the RO requested that the Veteran send copies of any records he has in his possession or any other evidence he would like to have considered, the letter did not advise the Veteran that he could provide information from alternate sources such as statements from military medical personnel (nurses, medics, corpsmen, doctors); "buddy" statements or affidavits from people who knew him while he was in service and knew of any disability the Veteran had while he was on active duty; state or local accident and police reports; employment physical examinations; medical evidence from hospitals, clinics, and private physicians by which, or by whom, he was treated after service; letters written during service; photographs taken during service; pharmacy prescription records; and insurance examinations. Id. Additionally, the Veteran submitted copies of VA treatment records from the Fayetteville VA Medical Center from June 2009 to August 2009. A June 2009 VA treatment record suggests that the Veteran had received previous VA treatment; however, the RO has not associated any VA treatment records with the claims file. The RO/AMC must seek to obtain any VA treatment records and associate them with the claims file. See 38 U.S.C.A. § 5103A(a)-(c); Bell v. Derwinski, 2 Vet.App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. Request the Veteran to identify all records of VA and non-VA health care providers who have treated him for any ear disabilities, to include labyrinthitis with vertigo, hearing loss, and tinnitus; hypertension; and headaches from the time of his discharge from service in January 1954 to present. (a) After obtaining any appropriate authorizations for release of medical information, the RO must seek to obtain records from each health care provider the Veteran identifies. (b) The Veteran must also be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them to the RO/AMC. 2. In light of the difficulty in obtaining the Veteran's service treatment records, the RO/AMC must identify for the Veteran the types of alternate or collateral sources of evidence that may assist in substantiating his claim, such as statements from service medical personnel and "buddy" certificates or affidavits. See Dixon v. Derwinski, 3 Vet.App. 261 (1992). 3. The RO/AMC must determine if any appropriate VA examination and opinions be obtained for any disability for which the Veteran seeks service connection. The law provides that VA shall provide such an examination when, taking into consideration all information and lay or medical evidence (including statements of the Veteran) the record contains competent evidence that the Veteran has a current disability, or persistent or recurring symptoms of disability, and indicates that the disability or symptoms may be associated with the claimant's active service, but does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. 5103A(d)(2). 6. Readjudicate the issues on appeal. If any benefit sought remains denied, the Veteran and his representative must be provided a supplemental statement of the case and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran 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. 2011). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs