Citation Nr: 1305205 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 09-10 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a neurological disability of the left arm. 2. Entitlement to service connection for a right wrist disability. 3. Entitlement to service connection for a lumbar spine disability. 4. Entitlement to service connection for a right hip disability. 5. Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to August 1980, from August 1984 to September 1993, and from September 2004 to September 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. 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 Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In the instant case, the Board must remand these issues to that VA can meet its duty to assist the Veteran in obtaining evidence to substantiate his claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Of record are DD Form 214s that document that the Veteran had three periods of active service. From July 1976 to August 1980 he served with the U.S. Marine Corps; from August 1984 to September 1993 and again from September 2004 to September 2005 he served with the with the U.S. Army. Associated with the claims file are service treatment records obtained by VA from the 1984 to 1993 period of service and service treatment records submitted by the Veteran for the 2004 to 2005 period of service. There are no treatment records associated with the claims file from his first period of service and, as VA has not obtained records of the 2004 to 2005 period of service, it is unclear as to whether there are records from that period of service held by a Federal department or agency in addition to the records submitted by the Veteran. In his July 2007 notice of disagreement, the Veteran stated that his right hip, bilateral foot, and low back condition all had onset during his active service with the Marine Corps and were aggravated by his most recent period of service. Service treatment records from the first and third period of service are therefore relevant to the issues on appeal. VA has a duty to obtain relevant service treatment records. 38 U.S.C.A. § 5103A(c)(1); 38 C.F.R. § 3.159(c)(3). As to the 1984 to 1993 service treatment records that were obtained by VA, the only documentation associated with VA obtaining them is a memorandum showing that the Veteran's service treatment records had been received at the "VA Service Medical Record Center (SMRC)" in St. Louis, Missouri and were being transferred to the RO in North Little Rock, Arkansas ("350"). This is date stamped in September 1993. There is a September 2006 memorandum in which the Los Angeles RO determined that the Veteran's service treatment records were unavailable. In the memorandum, the RO refers to an unanswered letter it sent to the Veteran, two unsuccessful telephone calls to the Veteran, and a search for reserve service units in California identified by the Veteran. Whenever VA attempts to obtain records held by a Federal department or agency it must continue in its efforts until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. 38 U.S.C.A. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2). The evidence just discussed does not establish that that the service treatment records from the first and third periods of service do not exist or that further efforts to obtain those records would be futile. In a January 4, 2013 Written Brief Presentation, the Veteran's representative noted that the RO was unsuccessful in obtaining the Veteran's service treatment records. His representative provided an explanation of what the representative believed is a typographical error on his most recent DD Form 214. His representative provided clarification as to the information that should lead to obtaining at least the Veteran's most recent service treatment records. On remand, the RO must attempt to obtain service treatment records from the Veteran's 1976 to 1980 period of service and his 2004 to 2005 period of service. Efforts to obtain the records must satisfy VA's duty to assist. The Board now turns to another duty to assist matter. In July 2010, the RO requested a VA examination with regard to the Veteran's claim of entitlement to service connection for the lumbar spine, right wrist, and right hip condition. The Veteran failed to report to the examination. A document printed July 23, 2010 documents that the Veteran's residential telephone was disconnected. Also listed are a business telephone number and, apparently, his home address. In the January 2013 Brief, the Veteran's representative argued that VA had failed to contact the Veteran as to the scheduled examinations. His representative argued that the Veteran has been treated at VA medical facilities so apparently VA can contact him. His representative also pointed out that the Veteran's business phone is in service. The Board finds the representative's argument persuasive. It is not clear that VA was sufficiently diligent in contacting him as to the scheduled examinations. In short, the Veteran has provided good cause for why he did not attend the examination. See 38 C.F.R. § 3.655(a) (2012). On remand, VA must provide him with another opportunity to attend the requested examinations. Additionally, the Veteran has asserted that he injured his feet in his first period of service. Service treatment records from his second period of service document that he sought treatment for symptoms involving his right great toe and/or right foot in July 1989, March 1990, May 1990 and June 1990 and a toe of his left foot in October 1991. In an August 2005 service medical history form he reported that he had foot pain. This was reported in the context of an injury or illness suffered during active duty for which he did not seek medical care. VA outpatient treatment records, for example from 2009, document treatment for a skin condition of his feet. Given, these records and the Veteran's assertion in his notice of disagreement that he had a foot condition first diagnosed during his service with the Marine Corps and aggravated during the 2004 - 2005 period of service, the Board concludes that VA has a duty to provide an examination and obtain an opinion with regard to his claim of entitlement to service connection for a bilateral foot disability. As to the claim of entitlement to service connection for a neurological condition of his left arm, the RO should determine, after obtaining all available service treatment records, whether VA has a duty to provide an examination with regard to that claim and then take appropriate action, if any. Additionally, it is unclear if all of the Veteran's relevant VA treatment records are associated with the claims file. As noted, it appears that the North Little Rock RO had his service treatment records in 1993. The RO should contact the VA Medical Center in North Little Rock Arkansas and determine if he was ever treated there and, if so, obtain any existing records of such treatment. Finally, the most recent records of treatment in the Loma Linda VA system are from April 2010. On remand, the RO should obtain any more recent relevant VA treatment records. Accordingly, the case is REMANDED for the following action: 1. After taking into consideration the explanation and information provided by the Veteran's representative in the January 4, 2013 Written Brief Presentation as to how to obtain the Veteran's service treatment records, attempt to obtain the Veteran's service treatment records for his 2004 to 2005 period of service. Also attempt obtain the Veteran's service treatment records from his 1976 to 1980 period of service. The RO/AMC must continue efforts to obtain these records until the records are obtained or until it is reasonably certain that such records do not exist or that further efforts to obtain them would be futile. Associate all replies to requests for the records and the records, if obtained, with the claims file. 2. Attempt to obtain any existing records of relevant treatment of the Veteran at the Little Rock Arkansas VA Medical Center for the period between 1993 and 2004, and obtain all relevant records of treatment of the Veteran through the Loma Linda VA system for the period since April 2010 and associate such records with the claims file. If any records are not obtained from one or both of these sources, obtain negative replies and associate those replies with the claims file. 3. If any of the records identified above are not obtained, consistent with 38 C.F.R. § 3.159(e) send a letter to the Veteran and his representative, informing them of the identity of the records VA was unable to obtain, an explanation of the efforts VA mad to obtain the records, a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the he submits the records VA was unable to obtain, and notice that he is ultimately responsible for providing the evidence. 4. After the above development is completed, ensure that the Veteran is scheduled for VA examinations of his right hip, lumbar spine, right wrist, and both feet and ensure that he and his representative are notified by letter sent to the Veteran's address of record as to the date, time, and place of the examinations and include a copy of that letter, stamped on the day that it is mailed to him, in the claims file. Inform him that failure to attend the examinations will result in VA adjudicating his claims based on the evidence of record. The claims file must be provided to the examiner(s), the examiner(s) must review the claims file in conjunction with the examination, and the examiner(s) must annotate the report(s) as to whether the claims files were reviewed. Rationale for all requested opinions shall be provided. If an examiner cannot provide the requested opinions without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The requirements of each examination are detailed in the following subsections: After interviewing the Veteran as to the nature and history of his claimed lumbar spine disability, reviewing the claims file, and examining him, identify any and all disorders of his lumbar spine, right hip, right wrist, and of the feet. Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed disorder of the lumbar spine, right hip, right wrist, and/or the feet, had onset during any period of his active service or was caused by his active service. 5. After reviewing all evidence of record determine whether VA's duty to assist the Veteran in obtaining evidence to substantiate his claim of entitlement to service connection for a left arm neurological disability includes providing a medical examination and obtaining a medical opinion. If, so, the RO/AMC must provide such examination and obtain information such as the information that the Board has directed to be obtained for the examinations that it has ordered in directive 3, above. 6. Then, readjudicate the issues of entitlement to service connection for a left arm neurological disability and for lumbar spine, right hip, right wrist, and bilateral feet disabilities. If any benefit sought is not allowed, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate opportunity to respond thereto. 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. 2012). _________________________________________________ JONATHAN B. KRAMER 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).