Citation Nr: 1312985 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 05-30 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for joint pain, to include as due to an undiagnosed illness. 2. Entitlement to service connection for obstructive sleep apnea, claimed as a sleep disorder, to include as due to an undiagnosed illness. 3. Entitlement to service connection for headaches, to include as due to an undiagnosed illness. 4. Entitlement to service connection for a neck disorder. 5. Entitlement to service connection for a right knee disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1967 to January 1971 and from November 1990 to July 1991, including service in Southwest Asia from January 1991 to July 1991. He also had various periods of service in the Army Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal of October 2003 and January 2004 rating decisions of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In pertinent part, in the October 2003 rating decision, the RO denied the Veteran's requests to reopen his claims for service connection for joint aches, a sleep disorder and a neck disorder. In the January 2004 rating decision, the RO denied, in pertinent part, the claims for service connection for a right knee disorder and headaches. The Veteran testified before the undersigned Acting Veterans Law Judge at a Board Videoconference hearing in January 2009. A hearing transcript of this proceeding has been associated with the claims file. The Board granted the Veteran's requests to reopen his claims for service connection for joint aches, a sleep disorder, and a neck disorder in an April 2009 decision. These reopened claims, as well as the claims for service connection for a right knee disorder and headaches, were remanded by the Board in April 2009 and April 2012. The RO certified this appeal to the Board in November 2012. Subsequently, additional lay evidence was added to the record. However, the Veteran waived his right to have the RO initially consider this evidence in a statement dated in December 2012. 38 C.F.R. §§ 20.800, 20.1304 (2012). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claims can be properly adjudicated. In April 2009 and April 2012, the Board remanded these claims, in pertinent part, for the AMC to obtain and associate the Veteran's missing Army Reserve treatment records and the Veteran's Reserve dates. To date, both of these actions have not been accomplished. Initially, regarding the records, during the January 2009 Board hearing, the Veteran and his representative argued that some of the Veteran's Reserve treatment records were missing. At the time of the hearing, the claims file contained the Veteran's service treatment records from his two periods of active duty, and Reserve treatment records dated from March 1982 to January 1989, and from June 1992 to August 1993. However, the Veteran and his representative contended that these records were not complete. Upon remand, in a September 2012 request, the AMC asked the National Personnel Records Center (NPRC) for all of the Veteran's records for the period from November 1990 to July 1991, the Veteran's second period of active duty. However, these records were already in the claims file at the time of the request, and thus no new records were obtained. The AMC did not ask NPRC for all Reserve treatment records dated since January 1971, following the Veteran's discharge from his first period of military service. The AMC also did not contact the Adjutant General of the State of Texas for the records, as requested in the Board's remand. In April 2012, the AMC did send the U.S. Army Human Resources a letter requesting the Veteran's Reserve treatment records. However, the U.S. Army did not respond, and the AMC did not send a second request for the records. The AMC must continue efforts to procure the relevant records relating to the Veteran's Army Reserves service until either the records are received, or until it receives specific information that the records sought do not exist or that further efforts to obtain them would be futile. To date, the AMC has not received the records, and they have not made a Formal Finding regarding the unavailability of these records; thus, attempts to obtain the records must continue. Regarding the Reserve dates of service, NPRC verified the Veteran's dates of active duty. In an August 2012 statement, the Veteran stated that he did not have any periods of active duty for training (ACDUTRA) in the Army Reserves. However, the Veteran's periods of inactive duty for training (INACDUTRA) in the Army Reserves have still not been verified. The AMC has not requested these dates from the NPRC, the U.S. Department of the Army, or the Adjutant General of the State of Texas, and the AMC has not made a Formal Finding regarding the unavailability of these dates. Thus, continued attempts to determine these dates must be made. A remand by the Board confers on the Veteran the right to VA compliance with the terms of the remand order and imposes on the VA Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall, the United States Court of Appeals for Veterans Claims (Court) held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. Thus, these claims must therefore be remanded to ensure compliance with the Board's previous remand directives. Finally, the Veteran's most recent, pertinent outpatient treatment records from the VA Medical Center (VAMC) in San Antonio, Texas, are dated from October 2010. Upon remand, all pertinent VA records since this date must be obtained and associated with the claims file. The private treatment records currently in the claims file should also be updated and associated with the claims file. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1) (West 2002); Loving v. Nicholson, 19 Vet. App. 96, 101-03 (2005). Accordingly, the case is REMANDED for the following actions: 1. Obtain all pertinent VA outpatient treatment records from the Houston, Texas, VAMC since October 2010 that have not been secured for inclusion in the record. Ensure that the Veteran has not been recently treated by any other local VAMCs. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record. 2. Obtain and update all private treatment records currently in the claims file. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record. 3. Contact the NPRC and request the Veteran's periods of INACDUTRA from January 1971 to the present, and the Veteran's Army Reserve treatment records from January 1971 to the present. 4. Contact the Adjutant General of the State of Texas and request the Veteran's periods of INACDUTRA from January 1971 to the present, and the Veteran's Army Reserve treatment records from January 1971 to the present. The Veteran appears to have served with the 238th Maintenance Company in San Antonio, Texas. 5. Contact the U.S. Department of the Army and request the Veteran's periods of INACDUTRA from January 1971 to the present, and the Veteran's Army Reserve treatment records from January 1971 to the present. 6. If no additional Reserve treatment records and/or service dates are obtained, the AMC must inform the Veteran of the unavailability of these records/dates, afford the Veteran an opportunity to submit his own copies of the records/dates, and then issue a written Formal Finding regarding the unavailability of these records/dates. 7. If additional pertinent Reserve treatment records are obtained and associated with the claims file, then return the claims file to the May 2012 VA examiners for addendum medical opinions. 8. After the above actions have been completed, readjudicate the Veteran's claims. If the claims remain denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. (CONTINUED ON THE NEXT PAGE) 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ APRIL MADDOX Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).