Citation Nr: 1600287 Decision Date: 01/05/16 Archive Date: 01/12/16 DOCKET NO. 12-07 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a left knee disability. 2. Whether new and material evidence has been received to reopen a claim for service connection for a right shoulder disability. 3. Whether new and material evidence has been received to reopen a claim for service connection for a lumbar spine disability. 4. Whether new and material evidence has been received to reopen a claim for service connection for a headache disability. 5. Entitlement to service connection for a prostate disability. 6. Entitlement to service connection for hearing loss disability, to include as secondary to service-connected diabetes mellitus or herbicide exposure. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from October 1955 to November 1974. This appeal comes to the Board of Veterans' Appeals (Board) from March 2007 and May 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. In January 2013, the Veteran and spouse testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. A March 2007 rating decision denied service connection for impaired hearing, claimed as secondary to herbicide exposure. While the RO adjudicated that claim in a May 2010 decision as a petition to reopen, the Board finds that the March 2007 rating decision was precluded from becoming final by receipt of a July 2007 written statement from the Veteran that the Board has construed as a timely notice of disagreement. Thus, the March 2007 rating action is the decision on appeal as to that issue. A May 2010 rating decision denied service connection for a prostate disability and declined to reopen the previously denied claims for service connection for a left knee disability, hypertensive retinopathy, and a right shoulder disability. In July 2013, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for further development. In a December 2013 supplemental statement of the case, the RO granted service connection for hypertensive retinopathy. Thus, that issue is no longer on appeal. In October 2014, the Board remanded these matters for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). REMAND As noted in the October 2014 remand, the Board had previously remanded these matters in July 2013 to request that the AOJ Contact the National Personnel Records Center (NPRC) and National Archives Records Administration (NARA) and request all medical treatment records pertaining to the Veteran from the Long Beach Naval Hospital from 1974 to 1992. The Board noted that the Long Beach Naval Hospital closed in 1994, but records from that facility had not been requested through any official sources. In August 2013, the AOJ requested the records from the NPRC. In a September 2013 reply, the NPRC stated that its response to the AOJ's prior September 2002 request contained all available service medical records. The Board notes that the Veteran's service medical records from active service are not the records being sought, but rather post-service records from a Naval Hospital. The Board notes that the September 2002 request was for medical treatment records pertaining to the Veteran from the Long Beach Naval Hospital, but only from 1974 to 1987 and not through 1992 as the Board requested. The record also shows that the request was returned because the forwarding order had expired. A January 2003 rating decision confirms that the request was returned and notes that the Veteran had not provided another address for the hospital. Thus, the record did not contain an adequate reply to the requested treatment records from the Long Beach Naval Hospital. The AOJ also did not submit a request to the NARA. In October 2014, the Board requested that the AOJ contact the NPRC and NARA and request all post-service medical treatment records pertaining to the Veteran from the Long Beach Naval Hospital from 1974 to 1992. The request was to specify that the records sought related to treatment of the Veteran after retirement from service. If any of the requested records were retired and placed into long-term storage under the control of either the NPRC or NARA, the appropriate agency should have the records activated and provide copies as requested. If no records were located, it should be noted in the claims file by written response from the requested repository and the Veteran should be informed and provided the opportunity to submit those records. In November 2014, the AOJ requested the records from the NPRC. In a January 2015 reply, the NPRC stated that a search was conducted for 1992 military retiree outpatient records from the Long Beach Naval Hospital, but no records were located. Outpatient records were retired to and filed at NPRC by the name of the facility at which the member was last treated. Outpatient records are cumulative. An April 2015 supplemental statement of the case confirms that a request was sent to the NPRC and that no records were located. Unfortunately, this request and response from the NPRC does not substantially comply with the Board's October 2014 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the Veteran the right to compliance with the remand orders); D'Aries v. Peake, 22 Vet. App. 97 (2008) (only substantial compliance, rather than strict compliance, with the terms of a remand that is required); Dyment v. West, 13 Vet. App. 141 (1999). With regard to the NPRC response, it was clearly indicated that a search was only conducted for 1992 records, instead of a search for records from 1974 to 1992, from the Long Beach Naval Hospital. In addition, the AOJ did not submit a request to the NARA. Lastly, the Veteran was never provided notice regarding the NPRC response, and thus was not provided an opportunity to submit the outstanding records prior to the AOJ readjudication in the April 2015 supplemental statement of the case. In light of the inadequate compliance with the prior remand directives, the Board must again remand these matters for further attempts to obtain these past records. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Accordingly, the case is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested. 1. Contact the NPRC and NARA and request all post-service medical treatment records pertaining to the Veteran from the Long Beach Naval Hospital for the entire period from 1974 to 1992. Specify that the records sought relate to treatment of the Veteran after retirement from service. If any of the requested records were retired and placed into long-term storage under the control of either the NPRC or NARA, the appropriate agency should have the records activated and provide copies as requested. If no records are located, it should be noted in the claims file by written response from the requested repositories and the Veteran should be informed and provided the opportunity to submit those records. 2. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Harvey P. Roberts 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) (2015).