Citation Nr: 1301677	
Decision Date: 01/15/13    Archive Date: 01/23/13

DOCKET NO.  07-16 639	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma



THE ISSUES

1.  Entitlement to service connection for spinal stenosis.

2.  Entitlement to service connection for cervical disc disease with back pain.

3.  Entitlement to service connection for muscle and joint pain, to include as due to an undiagnosed illness and as secondary to service-connected chronic fatigue syndrome.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The appellant
ATTORNEY FOR THE BOARD

H. Seesel, Counsel


INTRODUCTION

The Veteran had active service from December 1990 until October 1992, including a tour of duty in the Persian Gulf from April 1991 until June 1991.  The Veteran also had service from August 1995 until January 1997 and received an other than honorable discharge for that service. 

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from September 2004 and June 2006 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

Although the RO indicated the claim stemmed only from the June 2006 rating decision, the Board notes that the records received within one year of the prior September 2004 rating decision included a statement from the Veteran, a letter from Naval Hospital Camp LeJeune and prescription records.  The Veteran indicated in his statement that he was treated at a Naval Hospital after being robbed.  The letter from Camp LeJeune indicated that the Veteran owed payment for treatment in November 1996.  Another statement of the Veteran appears to raise a theory of entitlement for service connection for the back and neck as due to an undiagnosed illness.  The applicable regulation provides that new and material evidence received within the one year period prior to the decision becoming final is to be considered as having been received in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2012).  In such situations, the rating action will not become final, and any subsequent decision based on such evidence will effectively be considered as part of the original claim.  Buie v. Shinseki, 24 Vet. App. 242, 252 (2010).  Here, the statements of the Veteran and letter from Camp LeJeune suggest there was treatment during the Veteran's service, which was the reason the claim was denied in September 2004.  See September 2004 rating decision; see Kent v. Nicholson, 20 Vet. App. 1, 10 (2006) (finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied").  As such, the September 2004 rating decision did not become final, and the claim on appeal stems from the September 2004 and June 2006 rating decisions.  38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).  The Board has recharacterized the issues to reflect this fact.  

The Veteran testified at a video hearing before the undersigned Veterans Law Judge in March 2010.  A transcript of that proceeding is associated with the claims file.

The Board previously considered this appeal in July 2010 and September 2011 and remanded the claim for additional development.  The RO/Appeals Management Center (AMC) completed all requested development, but continued the denial of benefits sought.  As such, this matter is properly returned to the Board for appellate consideration. 

Unfortunately, this appeal must again be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required on his part. 



REMAND

After the September 2011 Board remand, the Veteran provided the RO with several medical authorizations to obtain his treatment records from various providers.  The RO sent a request for records to Oklahoma University Health Science Center in August 2012.  An undated response from Oklahoma University Medical Center indicated that the facility could not comply with the request because the authorization was for Oklahoma University Health Science Center.  No follow-up request listing Oklahoma University Medical Center was made.  VA has a duty to make reasonable efforts to assist a claimant to obtain evidence necessary to substantiate the claim.  38 U.S.C. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).  VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(1).  A reasonable effort generally consists of an initial request for records, and if the records are not received, at least one follow-up request.  Id.  The follow-up request is not required if the response indicates the records do not exist or the follow-up request would be futile.  Here, after the initial request, the records were not received, and VA was notified that the records could be obtained with an authorization addressed to the proper entity.  As such, a follow-up request is required.    

In July 2005, the Veteran sent a notification that he received treatment from Camp LeJeune in November 1996 and that he had been scheduled for an Environmental Health Registry Physical Examination on April 15, 1997.  These records are not presently associated with the claims file.  VA's duty to assist includes obtaining records in the custody of a Federal department or agency.  38 C.F.R. § 3.159(c)(1), (2); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the appellant's claims file, are in the constructive possession of the Board and must be considered).  Accordingly, these records should be obtained and associated with the claims file.  


Accordingly, the case is REMANDED for the following action:


1.  The RO/AMC should contact the Veteran and ask him to specify all medical care providers who treated him for his claimed conditions.  The RO/AMC should then obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file.  The RO/AMC should specifically request records from Oklahoma University Medical Center.

If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 

2.  The RO/AMC should obtain a copy of the April 15, 1997, Gulf War Registry examination and request copies of treatment records from Camp LeJeune in November 1996. 

If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 

3.  The RO/AMC shall then take any additional development action that it deems proper with respect to the claims.  

When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence and readjudicated.  If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 


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).

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. 2012).



______________________________________________
JESSICA J. WILLS
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) (2012).


Department of Veterans Affairs