Citation Nr: 1323489 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 08-36 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for hypertension, to include as secondary to service-connected kidney stones. 5. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and C.P. ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from April 1952 to March 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In September 2012, the Board remanded this claim for additional development. The case has been returned to the Board and is ready for further review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Reasons for remand: to provide the Veteran with adequate notice. In September 2012, the Board remanded this claim to provide the Veteran with proper notice of the unavailability of the private medical treatment records in the instances where the requests were returned by the U.S. Post Office as undeliverable at the addresses provided. It was noted that the notice must include: (1) the identity of the records that could not be obtained; (2) an explanation of the efforts that were made to obtain those records; (3) a description of any further action to be taken by VA with respect to the claims; and (4) notice that the Veteran is ultimately responsible for providing the evidence. The RO was to make follow-up requests for private records identified by the Veteran to include records of Dr. C.S.S., Research Clinical Laboratories, Tulsa Internists, Ltd., Dr. C.H.D., and B.E.K. Laboratory. A review of the file reveals that in May 2012 and again in July 2012, the RO requested records from the Tulsa X-ray Laboratory and in an October 2012 response, it was indicated that they did not have any medical records for the Veteran. In December 2012, the RO informed the Veteran that it needed more information from him and requested that he complete and return enclosed VA Forms 21-4142 for Tulsa Internists Ltd, Research Clinical Laboratories. Dr. C.S. Summers and B.E.K. Laboratory so that treatment records could be obtained. In February 2013, the RO requested treatment records from Research Clinical Laboratories, Tulsa Internist, Ltd., B.E.K. Laboratory and from Dr. Summers. Also in February 2013, the RO informed the Veteran that it had requested records from Tulsa Internists Ltd, Research Clinical Laboratories. Dr. C.S. Summers and B.E.K. Laboratory. In March 2013, the letters to Dr. Summers, and to Research Clinical Laboratories were returned as undeliverable. In March 2013, the Veteran was informed that no response was received from the February 2013 requests and that a second attempt would be made. In March 2013, a second request was made to B.E.K. Laboratory. In April 2013, the RO informed the Veteran that it was continuing to work on his claims and that it had received undeliverable mail from Research Clinical Laboratories. He was requested to return a VA Form 21-4142. In June 2013, the Board received copies of the February 2013 and the March 2013 letters sent to B.E.K. Laboratory which were returned as undeliverable. The Veteran's representative has argued in his June 2013 brief that a remand of this claim is required to comply with the Board's September 2012 remand because proper notice regarding the unavailability of the private records was not provided by the RO. It is argued that the Veteran has not been properly informed under the requirements of 38 C.F.R. § 3.159(e). The Board agrees that the RO failed to notify the Veteran of the inability to secure all records requested as required by 38 C.F.R. § 3.159(e), and that notice must be supplied to the Veteran. 38 C.F.R. § 3.159(e). A remand is required for compliant notice. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran must be informed of the unavailability of the records of all providers contacted; that is, records from Dr. C.S.S., Research Clinical Laboratories, Tulsa Internists, Ltd., Dr. C.H.D., and B.E.K. Laboratory pursuant to 38 C.F.R. § 3.159(e). Notify the Veteran (a) that records could not be obtained; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Review the claims file to ensure that the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ 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).