Citation Nr: 1600994 Decision Date: 01/11/16 Archive Date: 01/21/16 DOCKET NO. 10-32 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an effective date earlier than August 27, 2004 for the grant of service connection for migraine headaches. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARINGS ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant had active service in the United States Navy from July 1974 to July 1977. He subsequently became a member of the Naval Reserve and was discharged from that entity in May 1988. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) located in Muskogee, Oklahoma. The RO in Little Rock, Arkansas currently has jurisdiction of the appellant's claims file. In September 2010, a videoconference hearing was held between the RO and the Board in Washington, DC before the undersigned Veterans Law Judge (VLJ). A transcript from that hearing is in the claims file. The Board subsequently denied the earlier effective date claim in a decision issued in December 2010. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). A May 2013 decision issued by the Court affirmed the Board's denial of the earlier effective date claim. The Veteran then appealed the Court's decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit). In a decision issued in September 2014, the Federal Circuit reversed the holding of the Court and remanded the case to the Court. Thereafter, in a July 2015 decision, the Court held that the November 1985 rating decision that was the initial denial of the Veteran's claim for service connection for migraine headaches was not a final decision and that subsequent VA adjudications did not extinguish the pendency of that claim. The Court set aside that portion of the December 2010 Board decision that denied an earlier effective date for the grant of service connection for migraine headaches and remanded the matter for further development. The Court also set aside that the portion of the December 2010 Board decision that found there was no clear and unmistakable error (CUE) in the November 1985 rating action and dismissed the underlying motion for CUE for lack of jurisdiction. See Link v. West, 12 Vet. App. 39, 45 (1998) (holding that, pursuant to 38 U.S.C.A. § 5109A and 38 C.F.R. § 3.105(a), a CUE motion challenging a nonfinal decision cannot exist, as a matter of law); Best v. Brown, 10 Vet. App. 322, 325 (1997) (dismissing for lack of jurisdiction a Board decision that denied CUE as to a nonfinal RO decision). This appeal was processed using the VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In March 1985, the Veteran filed a claim for service connection for a headache condition. After obtaining various records, the RO in New Orleans sent a letter to the Veteran dated November 12, 1985, that requested additional information - in particular information about his reserve units. The New Orleans RO then denied the Veteran's service connection claim in a rating decision issued on November 29, 1985. The Veteran wrote to VA in December 1985, and stated that his military medical records were located at the Naval Reserve Readiness Center in New Orleans. VA did not take any additional action to obtain those records. Therefore, the Federal Circuit, in its September 2014 decision, held that the Veteran's 1985 claim remained pending, notwithstanding the subsequent adjudications, because VA had not undertaken any action to obtain the Veteran's outstanding Navy Reserve medical treatment records. The Federal Circuit reasoned that, because VA never acknowledged or considered the medical records the Veteran had referenced in his December 1985 letter, as required by 38 C.F.R. § 3.156(b), his 1985 claim remained pending. The Federal Circuit explained that, because VA was under an express regulatory obligation to make a determination regarding the character of the new evidence and had not done so, that failure could not be excused because allowing VA to skirt its regulatory obligations by revisiting a disability determination based, yet again, on an incomplete record would strip 38 C.F.R. § 3.156(b) of any significance. The Federal Circuit further stated that VA must provide a determination that is directly responsive to the new submission and that, until it does so, the March 1985 claim at issue remains open. Thus, the Court, in July 2015, noted that VA had received the Veteran's letter identifying the location of outstanding medical records in December 1985, well within the one-year appeal period following the November 1985 rating decision that denied his claim of entitlement to service connection for a headache condition. The Court also noted that, despite numerous VA adjudications in the nearly 30 years following receipt of that letter, VA had not yet attempted to obtain the referenced medical records to determine whether they constituted new and material evidence as required by 38 C.F.R. § 3.156(b). The Court concluded that the Veteran's 1985 claim for service connection for a headache condition was currently pending because VA had not acted upon his December 1985 letter in accordance with 38 C.F.R. § 3.156(b). The Court therefore remanded the case to the Board in order for VA to attempt to obtain the medical records referenced in the Veteran's December 1985 letter; to provide a determination that is directly responsive to his submission as to the location of his Reserve records as required by 38 C.F.R. § 3.156(b); and to thereafter develop the claim as necessary and assign an effective date consistent with 38 U.S.C.A. § 5110(a) and 38 C.F.R. § 3.400(b)(2)(i), the legal authorities governing effective dates for disability compensation based on an original claim. See Young v. Shinseki, 22 Vet. App. 461, 469 (2009) (remanding for the Board to make the threshold determination required by 38 C.F.R. § 3.156(b) and to assign an appropriate effective date). Thus, the Board finds that a remand is required in order for the AOJ to seek the Navy Reserve medical treatment records identified by the Veteran in his December 1985 letter. If the AOJ determines that those records are unavailable, the AOJ must make a formal finding of the unavailability of the Veteran's service records. In addition, the Board notes that, in cases where a veteran's service medical records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The heightened duty to assist claimants in developing facts pertinent to a claim in a case where service medical records are presumed destroyed includes the obligation to search for alternative medical records. Moore v. Derwinski, 1 Vet. App. 401 (1991). Where the claimant's service medical records have been destroyed or lost, the Board is under a duty to advise the claimant to obtain other forms of evidence, such as lay testimony. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The AOJ should keep this in mind when undertaking any development action to obtain the Navy Reserve medical treatment records identified by the Veteran in his December 1985 letter. To ensure that VA has met its duty to assist in developing the facts pertinent to the claim on appeal and to afford full procedural due process, the case is REMANDED for the following: 1. Assure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent, has been completed. 2. Search, at the Department of the Navy, at the Naval Reserve Readiness Center in New Orleans or equivalent facility, and at the National Personnel Records Center, or other appropriate sources, for the rest of the Veteran's service medical treatment records, or alternative records. In particular, search for the Veteran's Naval Reserve service medical treatment records for the years from 1977 to 1988. If any location contacted suggests other sources, those sources must be encompassed by the search. Ensure that any copies included in the claims file are legible. 3. If it is determined that those records are unavailable, make a formal finding of the unavailability of the Veteran's service records and document all attempts made to obtain alternative records. 4. To the extent an attempt to obtain any of these records is unsuccessful, the Veteran and his representative must also be informed of the negative results and be given opportunity to secure the records. The appellant should be specifically told of the possible sources of information or evidence that may be helpful to his claim. 5. After completing any additional notification and/or development action deemed warranted by the record, readjudicate the Veteran's claim. The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate laws and regulations, to include 38 C.F.R. § 3.156(b), as well as 38 U.S.C.A. § 5110(a) and 38 C.F.R. § 3.400(b)(2)(i) (the legal authorities governing effective dates for disability compensation based on an original claim). 6. If the benefit sought on appeal remains denied, the Veteran and his representative must be provided a Supplemental Statement of the Case (SSOC), containing notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time must be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).