Citation Nr: 1332188 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-48 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been received with respect to a claim of service connection for a cervical spine disability, and if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1976 to December 1980. He additionally has unverified Reserve service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St Louis, Missouri, which denied the benefit sought on appeal. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2011. A transcript of that hearing is of record. The claim was remanded in January 2011 in order to schedule a new Board hearing. The Board again remanded his claim in February 2012 for further evidentiary development. For the reasons described below, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran's service connection claim for a cervical spine disability was previously denied in a June 1998 Board decision. It appears, however, that additional service treatment records (STRs) may available. Consequently, the Board has thus far refrained from determining whether new and material evidence has been received to reopen the previously denied claim because if additional relevant service department records are obtained, his claim may be considered on the merits without regard to the prior denial. See 38 C.F.R. § 3.156(c) (2013). Notably, the Board previously remanded the Veteran's claim in order to request STRs pertaining to reported in-service treatment for a cervical spine injury at the medical dispensary located at the Marine Corps Recruit Depot (MCRD) following an apparent injury to his cervical spine resulting from a truck accident which took place in approximately 1976 or 1977. Specifically, the Board instructed that these records should be requested directly from the medical dispensary at the MCRD. While the RO/AMC requested these records from the National Personnel Records Center (NPRC), there is no evidence of record to indicate that a request for such records was made to the Recruit Depot directly. (The Board notes that evidence of record from the Veteran indicates that he would have been seen at the MCRD in November 1975, and this was the date used for the requested search in the prior remand- however, he indicated that the accident occurred in November 1976. Thus, the instant remand will expand the scope of the search to include both dates, in case he was mistaken as to either.) Thus, on remand a request for these records must be made directly to the medical dispensary located at the MCRD. Additionally, the Veteran also reported receiving treatment following his alleged in-service injury at the Naval Hospital at Camp Pendleton. While it appears that a search for these records was made through the NPRC, upon a thorough review of the claims file, it does not appear that a request for these records has been made directly to the Naval Hospital. Thus, on remand such a request must be made to the Camp Pendleton Naval Hospital. The Board further observes that per the Veteran's indications in his December 2009 VA Form 9, he may have applied for disability benefits administered by the Social Security Administration (SSA). To date, however, a copy of the Veteran's SSA records has not been associated with the claims file. As such, this case must also be remanded to obtain a complete copy of any available SSA records. See 38 C.F.R. § 3.159(c)(2) (2013); see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Finally, in a prior March 1998 hearing, before another Veterans Law Judge, the Veteran indicated that he received private treatment for his cervical spine condition from a Dr. Wilson at Drew Memorial Hospital in Monticello, Arkansas, in approximately December 1995. Records of his treatment have not yet been requested on his behalf. VA regulations require that reasonable efforts be made to obtain identified private treatment records on the Veteran's behalf. 38 C.F.R. § 3.159(c) (2013). Accordingly, the case is REMANDED for the following action: 1. Obtain a complete copy of all documents and/or evidentiary material pertaining to any application(s) for SSA disability benefits filed by the Veteran. 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. This determination 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) (West 2002) and 38 C.F.R. § 3.159(e) (2013). 2. After obtaining any required authorization and/or necessary information from the Veteran, request records pertaining to treatment rendered at the medical dispensary at the Marine Corps Recruit Depot in San Diego, California; and at Camp Pendleton Naval Hospital in from November 1975-January 1976 and from November 1976- January 1977. Requests for these records must be made directly to these identified facilities. Additionally, after obtaining required authorization from the Veteran, request copies of his treatment records, dated in approximately December 1995, directly from Dr. Wilson and from Drew Memorial Hospital in Monticello, Arkansas. Additional outstanding treatment records from any other identified healthcare provider/facility should also be obtained. Ask the Veteran to submit copies of any such treatment records in his possession, and inform him that he may obtain and submit treatment records himself. Efforts to obtain these records must continue until they are obtained unless it becomes reasonably certain that they do not exist or that further efforts would be futile. If any identified records cannot be obtained, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This determination 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) (West 2002) and 38 C.F.R. § 3.159(e) ( 2013). 3. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. If any requested development is not complete, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Finally, readjudicate the Veteran's service connection claim on appeal. If his claim remains denied, provide him and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return his appeal to the Board for further appellate review. The Veteran 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. 2013). _________________________________________________ ERIC S. LEBOFF 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. See 38 C.F.R. § 20.1100(b) (2013).