Citation Nr: 1337477 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-13 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a neck disability. 2. Entitlement to service connection for residuals of a left hand injury. 3. Entitlement to service connection for a sinus condition. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for hepatitis C. 6. Entitlement to service connection for headaches. (The claim of entitlement to a special apportionment of the Veteran's non-service-connected disability pension benefits in favor of V.S., his child, is the subject of a separate Board decision.) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from August 1972 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Medical and Regional Office Center (VAMROC) in Wichita, Kansas, in which the RO declined to reopen the Veteran's previously denied claim of service connection for a neck disability and also denied the Veteran's claims of service connection for residuals of a left hand injury, a sinus condition, hypertension, hepatitis C, and for headaches. The Veteran disagreed with this decision in August 2009. He perfected a timely appeal in March 2010. Although he requested a videoconference Board hearing when he perfected a timely appeal in March 2010, the Veteran cancelled his hearing when it was scheduled in November 2011. Thus, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (2013). The Board observes that, in an October 1975 rating decision, the RO denied the Veteran's claim of service connection for a neck disability. The Veteran did not appeal this decision, and it became final. See 38 U.S.C.A. § 7104 (West 2002). The Veteran also did not submit any statements relevant to this claim within 1 year of the October 1975 rating decision which would render this decision non-final for VA purposes under 38 C.F.R. § 3.156(b). See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b)). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issue of whether new and material evidence has been received to reopen a claim of service connection for a neck disability is as stated on the title page. Regardless of the RO's actions, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). 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 on his part. REMAND The Veteran contends that new and material evidence has been received sufficient to reopen his previously denied service connection claim for a neck disability. He also contends that he incurred residuals of a left hand injury, a sinus condition, hypertension, hepatitis C, and headaches during active service. Having reviewed the record evidence, the Board finds that additional development is necessary before the underlying claims can be adjudicated on the merits. A review of the Veteran's claims file shows that, in February 2009, RO personnel contacted the Social Security Administration (SSA) office in Wichita, Kansas, and confirmed that the Veteran was receiving SSA disability benefits. To date, however, the RO has not attempted to obtain the Veteran's SSA records. The Board notes that VA has a duty to obtain SSA records when it has actual notice that the Veteran is receiving SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, on remand, the RO/AMC must contact SSA and obtain the Veteran's complete SSA records, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records. With respect to the Veteran's service connection claims for hypertension and for headaches, the Board notes that a review of the Veteran's VA outpatient treatment records indicates that he has been diagnosed as having both of these disabilities. As noted, the Veteran contends that he incurred both of these disabilities during active service. The Board also notes that VA's duty to assist includes scheduling an examination where necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. To date, the Veteran has not been scheduled for VA examinations for his hypertension or his headaches. Thus, on remand, the Board finds that the Veteran should be scheduled for appropriate examinations to determine the nature and etiology of his hypertension and headaches. The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. After confirming the Veteran's current mailing address of record, contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who treated him for residuals of a left hand injury, a sinus condition, hypertension, hepatitis C, headaches, or a neck disability since his service separation. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Contact the Social Security Administration (SSA) and ask them to provide the Veteran's complete SSA records, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records. A copy of any request(s) sent to SSA, and any reply, to include any records provided by SSA, should be included in the claims file. 3. Schedule the Veteran for appropriate examination to determine the nature and etiology of his hypertension. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that hypertension, if diagnosed, is related to active service or any incident of such service. A complete rationale must be provided for any opinions expressed. The examiner is advised that the Veteran contends that he incurred hypertension during active service. The examiner also is advised that the lack of in-service complaints of or treatment for hypertension is not persuasive evidence that it did not occur during active service. 4. Schedule the Veteran for appropriate examination to determine the nature and etiology of his headaches. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that headaches, if diagnosed, are related to active service or any incident of such service. A complete rationale must be provided for any opinions expressed. The examiner is advised that the Veteran contends that he incurred headaches during active service. The examiner also is advised that the lack of in-service complaints of or treatment for headaches is not persuasive evidence that they did not occur during active service. 5. The Veteran should be given adequate notice of the requested examinations which includes advising him of the consequences of his failure to report to the examinations. If he fails to report to the examinations, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 6. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if 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. 2013). _________________________________________________ MARJORIE A. AUER 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).