Citation Nr: 1336212 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 08-09 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for headaches and blackouts. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from November 1975 to October 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In August 2010, the Veteran and his spouse testified before a Decision Review Officer (DRO) at the Phoenix RO. In July 2013, the Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge. Transcript of these proceedings are of record. As regards to the Veteran's current claim for service connection, the Board notes that, in Boggs v. Peake, the United States Court of Appeals for the Federal Circuit held that the "factual basis" of a claim for service connection is the veteran's disease or injury, rather than the symptoms of that disease or injury. Service connection for a seizure disorder, claimed as convulsive syncope, was most recently denied in June 2005 by a final Board decision. The Board notes that the Veteran's current claim is based on the same symptomatology contended by the Veteran has in the previous denials. Under the circumstances, the Board is of the opinion that the Veteran's current claim is, in fact, based on the factual basis as his previous claim, and, accordingly, must be considered on a "new and material" basis. Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008). Additional relevant service department records were located and associated with the claims file since the June 2005 Board denial. Although some service personnel records had been associated with the claims file earlier, in February 2007 at the time of his new claim, the Veteran submitted an ATC Form 18 indicating the Veteran "seemed to black-out on test." Thus, the claims will be considered on the merits in accordance with 38 C.F.R. § 3.156(c) (2013). The Board observes that the Veteran has submitted duplicate records many, many times. The Board wishes to inform the Veteran that all records submitted are kept in either a paper or virtual claims file and there is no need to submit additional copies. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, further development is necessary prior to adjudication of the Veteran's claim by the Board. Firstly, the Board acknowledges that additional service personnel records have been received at the time of the most recent claim for service connection from the Veteran. The Board notes that the Veteran had submitted service personnel records in the past but never this exact document. Thus, the Board finds that on remand the AMC must obtain all of the Veteran's service personnel records from the National Personnel Records Center so that all such relevant records will finally be associated with the claims file. Additionally, during the Veteran's DRO hearing, he indicated that he had received medical intervention for his claimed disabilities almost immediately after service. Unfortunately, these older records were also not requested at the time of the Veteran's initial claims, although the Veteran also identified such records at that time. Thus, the Veteran's records, both written and electronic, should be requested from the VA Medical Centers in Florida and Arizona as well as various private treatment records, as listed more specifically in the action paragraphs below. The Board notes that the Veteran has contended that he had a bacterial infection and/or sinusitis with antibiotic treatment in-service which led to convulsive syncope, convulsions, headaches and cognitive decline. The Board notes that contained in the Veteran's claims file are substantial treatment records, dated within ten years after his separation from active duty, which indicate that his blackouts began after his 1977 auto accident; however, there is a notation on his service personnel records that he "seemed to black-out on test." It appears from the context of the personnel record that the author of the document did not mean an actual loss of consciousness but instead was referring to a loss of memory during exam taking. The Veteran, however, contends that events in service are related to his current disabilities. The Veteran argues that he had encephalitis, meningitis, a traumatic brain injury, or had side effects from antibiotic treatment for multiple bouts of sinusitis during active service. Thus, there are many medical questions left unanswered by the information currently in the claims folders. The Veteran should be afforded a VA examination by a physician who completely and thoroughly reviews the claims file in order to ascertain the etiology of the Veteran's disabilities. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006). The Board additionally notes that the Veteran has at times indicated that his currently claimed disabilities pre-existed service and stem from a childhood injury; however, there were no current disabilities stemming from such accident noted in the Veteran's service treatment records to include his induction physical. The childhood injury was only noted in the Veteran's medical history on induction in July 1975. The Board cannot find that there is clear and unmistakable evidence indicating that the Veteran had such disability on entry into active service. Thus, the Veteran's claim is one for service connection on a direct basis rather than aggravation. The Board also notes that Veteran had applied for benefits from the Social Security Administration and has been receiving them for many years according to his hearing testimony as well as documents in the claims file. The Court has long held that the duty to assist includes requesting information and records from the Social Security Administration which were relied upon in any disability determination. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (VA is required to obtain evidence from the Social Security Administration, including decisions by the administrative law judge, and give the evidence appropriate consideration and weight); see also 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2). The Board observes that there are some adjudicatory documents from Social Security associated with the claims file but apparently not the medical records which would normally be obtained by VA. Therefore, the Veteran's records determining his entitlement to Social Security benefits as well as all medical records used to make such determination must be requested. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Request all of the Veteran's service personnel records from the National Personnel Records Center. 2. Ask the Veteran to provide the names and addresses of all medical care providers who treated him for a back disability. The Veteran should specifically be requested further information about treatment from Jackson Memorial in Miami, Florida and Dr. Barbosa in Phoenix, Arizona. After securing any necessary release, such records should be requested and all records which are not duplicates should then be associated with the claims file. Specifically, all records, both electronic and paper to include any archived records, should be requested from the following VA Medical Centers: Phoenix (1979 to 1984, 1995-1996), Miami (1985 to 1993) and Orlando (1994-1997), Flagstaff Community Based Outpatient Center (1998-2004) and from Prescott (2004 to present). Additionally, any current treatment records not already associated with the claims file should be retrieved on remand. 3. Obtain from the Social Security Administration the records pertinent to the Veteran's claim for Social Security disability benefits, including the medical records relied upon concerning that claim. Any negative search must be noted in the claims file and communicated to the Veteran. If it appears that additional attempts to obtain such records would be futile, then a memorandum of unavailability should be drafted and added to the claims folder. 4. After all of the above development has been completed, schedule the Veteran for a VA examination by a physician to determine the current nature of the Veteran's headache and syncope disability. The claims folder must be made available to and reviewed by the examiner in connection with the examination. All tests deemed necessary should be conducted. For any headache disability, syncope or seizures, or other similar conditions found, the examiner should express an opinion as to whether it is more likely, less likely, or at least as likely as not that the disability had its onset in service or is otherwise related to service to include the consideration of the Veteran's claims. A rationale for any opinions should be provided. 5. After the development requested above has been completed to the extent possible, the record should again be reviewed. If the benefits sought on appeal remain denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. 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 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). _________________________________________________ JAMES L. MARCH 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) (2013).