Citation Nr: 1315776 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 10-38 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for residuals of a splenectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to November 1974. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran claims service connection for residuals of a splenectomy. She claims that in May 1974, while on active duty, she sustained a fall while working on the flight line at Oceana Naval Air Station (NAS) in Portsmouth, Virginia. The Veteran stated that as a result of her injuries she subsequently underwent a splenectomy in May 1974 performed at Portsmouth Naval Hospital in Portsmouth, Virginia. In September 2009, the RO contacted the National Personnel Records Center (NPRC) and requested the Veteran's service treatment records. Later that month, NPRC notified the RO that the Veteran's service treatment records were not found. A March 2010 search of the Department of Defense records was also negative for records for the Veteran. In March 2010, the RO contacted the Records Management Center (RMC) in another attempt to obtain the Veteran's service treatment records; the RMC notified the RO that it did not have these records. Thereafter, the Veteran submitted a May 1974 service personnel record showing that she was granted eight days of sick leave from May 21 to May 29, 1974, during which time she was at the Naval Regional Medical Center in Portsmouth, Virginia. In July 2011, the RO contacted the Naval Medical Center in Portsmouth, Virginia and requested the records from the Veteran's May 21 to May 29, 1974 hospitalization. In September 2011, the Department of the Navy Naval Medical Center in Portsmouth, Virginia responded that there were no inpatient records located at the medical facility. Personnel from the Naval Medical Center then indicated that they checked with St. Louis (presumably meaning the NPRC located in St. Louis, Missouri), but no records were found. It was then advised that the RO contact NPRC directly and request the hospital records. In September 2011, the RO requested and obtained the Veteran's service personnel records from NPRC. No request was made in an attempt to obtain the Veteran's May 1974 hospital records. The Board finds that additional efforts must be undertaken in an effort to obtain the Veteran's clinical records. Although the RO requested the Veteran's service treatment records from NPRC in September 2009, no requests have been made to the NPRC specifically for clinical records from May 1974. The Naval Medical Center informed the RO that it contacted the NPRC for the Veteran's clinical records and was told that the records were not found. However, the Naval Medical Center also directed the RO to contact the NPRC and request the Veteran's in-service hospital records. Given that the Veteran's service personnel records were located at the NPRC as recently as September 2011, additional attempts must be made to obtain her outstanding clinical records. Thus, on remand, the RO must contact NPRC, or any other appropriate Federal agency, and request all clinical records related to the Veteran's hospitalization in May 1974 at the Naval Medical Center in Portsmouth, Virginia. Finally, in light of the service personnel records and the Veteran's competent reports of an in-service surgery, the Veteran must be afforded a VA examination. See 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Buchanan v. Nicholson, (addressing lay evidence as potentially competent to support presence of a disability even where no corroborated by contemporaneous medical evidence). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford her the opportunity to identify or submit any additional pertinent evidence in support of her claim. The Veteran must be requested to complete and return authorization and consent to release information forms regarding any private treatment. Based on her response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that she is ultimately responsible for providing the evidence. The Veteran and her representative must then be given an opportunity to respond. 2. The RO must contact the National Personnel Records Center and any other appropriate agency to obtain the Veteran's clinical records from Naval Medical Center, Portsmouth, Virginia, or any associated medical facilities, related to the Veteran's May 1974 inpatient treatment. Any additional action necessary, including follow-up action requested by the contact entity, must be accomplished. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that she is ultimately responsible for providing the evidence. The Veteran and her representative must then be given an opportunity to respond. 3. After completion of the above, the Veteran must be afforded an appropriate VA examination. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Following a review of the evidence of record and the clinical evaluation of the Veteran, the examiner must provide an opinion as to whether the evidence of record, to include the Veteran's statements as to how the injury occurred and the eight days of sick leave at Portsmouth Naval Hospital in 1974, is consistent with the removal of her spleen at that time. The clinical evaluation must report all pertinent symptomatology. Any indicated diagnostic tests and studies must be accomplished. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why the opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. The RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. The RO must notify the Veteran that it is her responsibility to report for the examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to her last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).