Citation Nr: 1328717 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 07-08 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for residuals of a chest wound, including chest wall pain with paralysis to the chest cavity, oxygen desaturation, frequent respiratory pauses and limitation of motion. 2. Entitlement to service connection for residuals of a right leg wound, including loss of feeling with pain, numbness and loss of balance. 3. Entitlement to service connection for left ear hearing loss. REPRESENTATION Veteran represented by: Joseph Moore, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from March 1969 to July 1970 and from August 1972 to March 1982. He is the recipient of the Combat Action Ribbon and Purple Heart. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In May 2009, the Veteran testified before a Veterans Law Judge at a hearing sitting at the RO. A hearing transcript has been associated with the claims file. In November 2011, the Board denied the instant claims as well as a claim for service connection for right ear hearing loss. The Veteran subsequently appealed such denial to the United States Court of Appeals for Veterans Claims (Court). In a September 2012 Joint Motion for Partial Remand (JMR), submitted by the Secretary of VA and the Veteran's attorney (hereinafter "the parties") agreed that vacatur and remand of the issues of entitlement to service connection for residuals of a chest wound, residuals of a right leg wound, and left ear hearing loss was warranted. Subsequently, the Court issued an Order granting the JMR and, therefore, such issues have been remanded to the Board for further adjudication. The Board's denial of a claim for service connection for right ear hearing loss was not disturbed by the JMR. The Board observes that, in December 2004, the Veteran submitted a VA Form 21-22 (Appointment of Veteran Service Organization (VSO) as Claimant's Representative) in which he designated the California Department of Veterans Affairs as his representative. In June 2013, the Veteran submitted a VA Form 21-22 (Appointment of VSO as Claimant's Representative) in which he designated Joseph Moore, a private attorney, as his representative. The Board recognizes this change in representation. In July 2013, the Veteran was informed that the Veterans Law Judge who had conducted his May 2009 hearing was no longer employed by the Board and was offered the opportunity to testify at another hearing. The Veteran's attorney declined another VA hearing in August 2013. In its prior remands and decision, the Board has referred the issues of entitlement to increased ratings for posttraumatic stress disorder and left ulnar neuropathy, and entitlement to service connection for chloracne and malaria to the agency of original jurisdiction (AOJ) for appropriate action. However, it does not appear that any action has been taken on these claims. Therefore, they are again referred to the AOJ for appropriate action. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the claims on appeal. The appeal is REMANDED to the VA RO. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. In a September 2012 JMR, the parties determined that the Board erred by not ensuring that VA attempted to obtain service medical records that the Veteran had identified as pertinent to his claims and had requested VA to obtain. The Veteran alleged that he had received in-service treatment at the "NSA Hospital Da Nang" and requested that VA obtain these records in an August 2011 statement and indicated that he received treatment at the "Da Nang Combat Field Hospital" in a May 2005 Authorization and Consent to Release Information to the VA. On remand, an attempt to obtain such records should be made. In addition, the parties determined that the Board's reliance on a December 2009 VA etiological opinion was error as the opinion was inadequate. Specifically, the parties determined that this opinion was inadequate as the examiner had found that the Veteran never sought treatment for chest and right leg problems without discussing particular pieces of evidence which documented such complaints. On remand, a new VA examination should be conducted to determine the nature and etiology of the Veteran's claimed residuals of a chest wound and a right leg wound. The Board also notes that it is not clear whether the Veteran receives regular treatment from any provider with regard to his claimed residuals of a chest wound, residuals of a right leg wound, and/or left ear hearing loss. Therefore, while on remand, the Veteran should be given an opportunity to identify any healthcare provider who treated him for his claimed disorders since service and to submit any treatment records or statements addressing the etiology of such disorders. Thereafter, any identified records should be obtained for consideration in the Veteran's appeals. Accordingly, the case is REMANDED for the following action: 1. Attempt to secure the Veteran's service treatment records dated in April 1970 from NSA Da Nang and the Da Nang Combat Field Hospital related to his shrapnel wound to the right leg and left chest wall from any appropriate source, to include the National Personnel Records Center. Please note that clinical records may be filed under the name of the facility rather than the servicemember. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The Veteran should be given an opportunity to identify any healthcare provider who treated him for his claimed residuals of a chest wound, residuals of a right leg wound and/or left ear hearing loss since service and to submit any additional statements addressing the etiology of such disorders. After securing any necessary authorization from him, obtain all identified treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Following the receipt of any additional records, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his claimed residuals of a wound to the chest and right leg. All indicated tests and studies should be undertaken. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. The examiner is asked to furnish an opinion with respect to the following questions: (a) Identify all diagnoses related to the Veteran's chest and/or right leg. The examiner should identify all such disorders that have been present at any time since January 2005. (b) For each diagnosed disorder of the chest and/or right leg, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each such disorder is related to the Veteran's military service, to include his April 1970 shrapnel wound to the right leg and left chest wall. In offering any opinion, the examiner must consider the full record, to include the Veteran's statements regarding the incurrence of this injuries while jumping and continuity of symptomatology since service. The rationale for any opinion offered should be provided. 4. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the March 2010 supplemental statement of the case. If the claims remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER 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).