Citation Nr: 1510201 Decision Date: 03/11/15 Archive Date: 03/24/15 DOCKET NO. 09-44 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for meningioma, status post craniectomy, to include schwannoma of the trigeminal nerve. REPRESENTATION Appellant represented by: John V. Tucker, attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran served on active duty from July 1971 to August 1994. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2011, the Veteran presented testimony before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2012, the Board issued a decision denying the benefit now sought on appeal. The Veteran appealed that part of the Board's decision to the Court of Appeals for Veterans Claims (CAVC or Court), which issued an order in July 2014 approving a joint motion for partial remand (JMPR) by the Veteran and the VA Office of General Counsel (herein after "the parties"). The parties requested in the JMPR that the August 2012 Board decision be vacated and the issue be remanded back to the Board for further development and adjudication. The appeal is presently before the Board for action consistent with the instructions contained in the JMPR. The Board's August 2012 decision also denied a claim of entitlement to service connection for a cervical spine disability to include degenerative disc disease. In the JMPR, the Veteran explicitly abandoned his appeal as to that claim, and the Court's order dismissed this issue. Accordingly, that issue is not currently before the Board. See Cacciola v. Gibson, 27 Vet. App. 45 (2014); see also Pederson v. McDonald, __ Vet. App. __, 2015 WL 590779 (Feb. 13, 2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The JMPR identifies two bases for remanding the matter. First, the parties agreed that the Board failed to address certain lay "buddy" statements submitted by the Veteran in September 2008, which described the Veteran's in-service symptomatology, including complaints of eye pain and headaches. Second, the parties agreed that in reaching its conclusion that the probative value of a November 2011 opinion was not lessened by any misunderstanding of the facts, the Board failed to adequately address the examiner's conclusion which appears to rely on the inaccurate fact of a surgery having been conducted on the eye prior to service. The parties agreed that the Board should provide an adequate statement of reasons or bases that reconciles the apparent inconsistency in the evidence regarding the issue of pre-service surgery on Veteran's eye. Before proceeding with a decision addressing the substance of the concerns raised in the JMPR, the Board now finds it necessary to remand this appeal for further evidentiary development. Specifically, to obtain the actual films of a computed tomography (CT) scan conducted during the Veteran's active duty in 1994. The Board will also ask for a VA opinion by a radiologist to evaluate those images. Accordingly, the case is REMANDED for the following action: 1. Contact the MacDill Air Force Base hospital or other potential records custodian(s) to request the films and X-ray reports for a neck CT scan conducted in March 1994 by order of the ENT Clinic. As many requests as are necessary must be made to attempt to obtain these records. Such efforts must end only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile, such as if the service department or record custodian advises that the requested records do not exist or the custodian does not have them. 2. All attempts to fulfill the development specified in paragraph 1 must be documented in the claims file. If, after making all reasonably attempts (as specified) to obtain these records it is determined that the records sought do not exist or that further efforts to obtain those records would be futile, the AOJ should send notice to the Veteran, as directed by 38 C.F.R. § 3.159(e)(1), identifying: (i) the identity of the records VA was unable to obtain; (ii) an explanation of the efforts VA made to obtain the records; (iii) a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the Veteran submits the records VA was unable to obtain; and (iv) a notice that the Veteran is ultimately responsible for providing the evidence. The Veteran must be also notified that he is always allowed to provide such records himself, notwithstanding VA's inability to obtain the records. 3. If the films and X-ray identified in paragraph 1 are obtained, arrange for this evidence and all other relevant information to be forwarded to a radiologist for review and preparation of a VA opinion. Accordingly, the radiologist is asked to evaluate the films and X-rays reports, and then address the following two questions: (a) Do the films and X-rays reports show any evidence of a schwannoma of the trigeminal nerve that was later discovered and surgically removed in 2001? (b) If the films and X-rays reports do not show any evidence of a schwannoma of the trigeminal nerve, did the CT scan sufficiently capture the area of the skull such that the schwannoma would have been imaged if present? In answering these questions, please explain the reasoning underpinning all of your conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion. A report of the examination should be prepared and associated with the Veteran's VA claims file. 4. After completing all actions set forth in paragraphs 1-3, plus any further action needed as a consequence of the development completed in paragraphs 1-3 above, readjudicate the remanded claim with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations. The Veteran should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 2014). _________________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).