Citation Nr: 1315665 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 06-10 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a skin disorder. 2. Entitlement to service connection for a stomach disorder. 3. Entitlement to service connection for hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to September 1978. He also had subsequent service in the United States Army Reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas, which denied the benefits sought on appeal. A hearing, conducted by the undersigned Veterans Law Judge, was held at the RO in April 2007. A transcript of the hearing testimony is in the claims file. The issues on appeal were last before the Board in October 2011 at which time the claims for service connection for a skin disorder and for a stomach disorder were denied and the hearing loss and tinnitus claims were remanded for additional evidentiary development. The Veteran appealed the Board's October 2011 denial of service connection for the skin and stomach disorder to the United States Court of Appeals for Veterans Claims (the Court). In July 2012, the Court remanded the claims of entitlement to service connection for the skin disorder and the stomach disorder back to the Board for actions consistent with the terms of a July 2012 joint motion for remand. The Court noted that its determination did not affect the Board's remand of the tinnitus and hearing loss claims. These issues remain on appeal. Also before the Board in October 2011 was a claim of entitlement to service connection for a depressive disorder which was granted. The Court's July 2012 order did not affect the outcome of this determination and the issue of entitlement to service connection for depressive disorder is no longer on appeal. Also before the Board in October 2011 was a claim of entitlement to service connection for pes planus. This claim was remanded in October 2011. In October 2012, the RO granted service connection for bilateral pes planus. The issue is no longer on appeal. 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 on his part. REMAND The July 2012 joint motion for remand found that VA erred in relying on a December 2009 VA examination in denying service connection for a stomach disorder. It was observed that the Veteran has claimed that his stomach disorder was related to his service-connected depressive disorder and posttraumatic stress disorder (PTSD). The examiner who conducted the December 2009 VA examination diagnosed the presence of gastroesophageal reflux and opined that the disorder was not directly caused by the Veteran's active duty service. The examiner did not provide any opinion as to whether there was an etiologic link between the diagnosed gastroesophageal reflux and the service-connected depressive disorder and PTSD. The joint motion for remand directed that the Board obtain a medical opinion which addresses the question of whether there is an etiologic link between the Veteran's service-connected mental disorders and his gastroesophageal reflux. The joint motion for remand also found fault in VA's failure to ensure that its actions substantially complied with a September 2009 Board remand. In September 2009, the Board remanded, in pertinent part, the claims of entitlement to service connection for a skin disorder, hearing loss and tinnitus, in part, to attempt to obtain complete copies of the Veteran's service treatment records which appeared to be incomplete. The Board directed that the RO contact the National Personnel Records Center (NPRC), the Army Reserve Personnel Center (ARPCEN), the Records Management Center (RMC) and any other appropriate location to request complete copies of the Veteran's service treatment records. The joint motion for remand referred to the fact that VA only contacted the U.S. Army Human Resources Command and the NPRC, before issuing a formal finding that the Veteran's service treatment records were unavailable. The Board agrees with the joint motion for remand and finds that its September 2009 remand instructions were not substantially complied with. Further attempts must be made by VA to obtain the Veteran's complete service treatment records to include, at a minimum, contacting the ARPCEN and RMC. While these matters are on remand, to ensure that all due process requirements are met, the RO should give the Veteran another opportunity to present information/evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1); but see 38 U.S.C.A. § 5103(b)(3) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. For any attempts to obtain indentified evidence which are unsuccessful, VA must provide the Veteran with the proper notification. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims for service connection for a stomach disorder, a skin disorder, hearing loss and tinnitus. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate action to obtain and associate with the claims file complete copies of the Veteran's service treatment records. Attempts must be made to obtain the evidence, at a minimum, from ARPCEN and RMC, as well as any other appropriate records depository to which pertinent service treatment records may have been sent. 2. After accomplishing the above-requested action to the extent possible, the RO should inform the Veteran of the following: (a) the specific records the RO is unable to obtain ; (b) the efforts that the RO made to obtain those records; (c) any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing the evidence. The Veteran should then be given an opportunity to respond. 3. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not of record. The RO's letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. 5. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should adjudicate the claims for service connection for a stomach disorder, a skin disorder, tinnitus and hearing loss in light of all pertinent evidence and legal authority. 7. If any benefit sought on appeals remain denied, the RO must furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant and his representative have 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).