Citation Nr: 1600307 Decision Date: 01/06/16 Archive Date: 01/21/16 DOCKET NO. 09-37 034A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for residuals of a right hand injury (claimed as numbness of the hand). 2. Whether new and material evidence has been received to reopen a claim of service connection for a left leg disorder (claimed as numbness of the leg). 3. Entitlement to service connection for bilateral flatfoot. 4. Entitlement to service connection for a disability manifested by hand muscle pain. 5. Entitlement to service connection for fibromyalgia in the arms, thighs and legs. 6. Entitlement to service connection for sleep apnea. 7. Entitlement to service connection for left hand numbness. 8. Entitlement to service connection for right leg numbness. 9. Entitlement to service connection for an eye disorder. 10. Entitlement to service connection for arthritis of the shoulders, arms, hands, back, and legs. 11. Entitlement to service connection for a chronic heart disorder, to include mitral valve prolapse. 12. Entitlement to service connection for hypertension. 13. Entitlement to service connection for a disability manifested by skin rashes. 14. Entitlement to a rating in excess of 10 percent for residuals of a pilonidal abscess incision with scar. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1975 to June 1978. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). In his October 2009 substantive appeal, the Veteran requested a hearing before the Board in Washington, D.C. He was scheduled for such hearing, and advised it would be held in November 2015; in October 2015 correspondence, he responded that he would not be able to attend (and did not request that it be rescheduled), and the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that proper adjudication of the issues on appeal is not possible based on the record as it currently stands, and that additional development of the evidentiary record is necessary; VA's duty to notify and assist mandated under the Veterans Claims Assistance Act of 2000 (VCAA) has not been met. VA's duty to assist includes making reasonable attempts to secure and obtain private and VA treatment records, including involving petitions to reopen previously denied claims. See 38 C.F.R. §§ 3.159(c). Regarding the matter of whether new and material evidence has been received to reopen a claim of service connection for a left leg disorder, the Board finds that Kent-compliant notice has not been provided. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. On remand the Veteran must be provided Kent-compliant notice with respect to the matter of whether new and material evidence has been received to reopen a claim of service connection for a left leg disorder. In April 2009 the Veteran indicated that he had received treatment for all of the disabilities on appeal at the VA Medical Center (VAMC), Tuskegee, Alabama/Central Alabama Veterans Health Care System (CAVHCS),Tuskegee, Alabama, and the VAMC in Houston, Texas for all of his claimed disorders from 1976 to the present, and requested that records of such treatment be secured. While a few sparse records have been associated with his electronic file, the complete records of his evaluations and treatment for the disabilities at issue are not found therein. [The record suggest that such records may have been sought, and a "cover sheet" appears to indicate that records of unknown scope were forwarded in paper copy form.] As VA treatment records are constructively of record, and the Veteran alleges that records outstanding contain pertinent information, exhaustive development for the complete VA treatment records is necessary. In November 2015 written argument the Veteran's representative asserts, in essence, his residuals of a pilonidal abscess incision, including scar, have increased in severity, and that the available evidence does not reflect the current state of the disability. The Veteran was last afforded a VA examination to assess the pilonidal abscess incision residuals in April 2009. In light of the length of the intervening period and the allegation of worsening, a contemporaneous examination to assess the severity of the disability is necessary. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the case is REMANDED for the following: 1. The AOJ should provide the Veteran Kent-compliant specific to his petition to reopen the claim of service connection for a left leg disorder. 2. The AOJ should ask the Veteran to identify the providers of all evaluations and treatment he has received for each disability on appeal (bilateral flat feet, muscular pain in the hands, fibromyalgia of the arms, thighs, and legs, chronic sleep apnea, numbness of the left hand, numbness of the right leg, chronic eye disorder, arthritis of the shoulders, arms, hand, back and legs, mitral valve prolapse, hypertension, a heart disorder, residuals of injury to the right hand, a left leg disorder, skin rashes, and pilonidal abscess incision with scar), and to provide the authorizations necessary for VA to obtain all outstanding records of any such private evaluations or treatment he has received. The AOJ should secure for the record copies of the complete clinical records of all treatment from the providers identified. If a private provider does not respond to a VA request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure private records are received. The AOJ should specifically secure the complete records of all VA evaluations and treatment the Veteran has received for each disability on appeal, from February 1976 to the present, to include from CAVHCS/VAMC Tuskegee, Alabama and VAMC Houston, Texas,. The AOJ should also arrange for exhaustive development to secure any records pertaining to the claimed disorders from the Army hospital at Fort Campbell, Kentucky. If any (federal) record sought is unavailable, the AOJ should issue a formal finding detailing the efforts taken to locate and secure such records, and the reason for their unavailability. 3. Thereafter, the AOJ should arrange for a proctology examination of the Veteran to assess the current severity of his residuals of pilonidal abscess incision with scar. The examiner should describe all residual pathology and related symptoms and impairment in detail, specifically indicating whether the pathology found is more appropriately evaluated by analogy to painful scar or under any criteria in 38 C.F.R. § 4.114. The examiner must include rationale with all opinions, citing to supporting clinical data as deemed appropriate. 4. The AOJ should then review the record, arrange for any further development suggested by any additional records received, and readjudicate the claims. If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).