Citation Nr: 1754064 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 11-27 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for bronchial asthma. 2. Entitlement to service connection for bronchitis. 3. Entitlement to service connection for a lung disorder, other than bronchitis or bronchial asthma. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD). 5. Whether new and material evidence has been submitted to reopen a claim for service connection for a nervous condition other than PTSD, claimed as schizophrenia. 6. Entitlement to service connection for hypertension. 7. Entitlement to service connection for bilateral hearing loss. 8. Entitlement to service connection for migraine headaches. 9. Entitlement to service connection for bilateral flat feet. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and T.L. ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from May 3, 1976, to May 19, 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2017, the Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO. A transcript of the hearing is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager paperless claims processing system. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND After a review of the file, the Board has determined that there are missing private and VA outpatient treatment records that are pertinent to this appeal. In terms of VA records, the file only contains VA records from April 2010 to July 2010 and from December 2012 to June 2014. It should also be noted that there are treatment records on file from a correctional institute where the Veteran was incarcerated from 2001 to 2005. However, there are no treatment records on file from the date of the Veteran's service discharge in 1976 to 2001, or from 2014 to present. Thus, an attempt should be made to obtain the outstanding VA records for these periods. See 38 U.S.C. § 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if such evidence could be determinative of the claim). These outstanding records are particularly relevant to the Veteran's claims for service connection for bilateral pes planus and for bilateral hearing loss in light of his hearing testimony that he was diagnosed by VA as having these disabilities and in view of the absence of these diagnoses in the evidence currently of record. Regarding private treatment records, the Veteran reported in August 1981 that he received private psychiatric treatment from 1976 to 1978. He also completed and signed authorization forms authorizing VA to obtain these records. However, it does not appear that an attempt was ever made to obtain these pertinent records. Accordingly, a remand is in order so that an attempt can be made to obtain this evidence. See 38 U.S.C. § 5103A (b); 38 C.F.R. § 3.159; see also Graves v. Brown, 8 Vet. App. 522, 524-25 (1996) (holding that, where the VA is on notice of the existence of evidence that might constitute new and material evidence to reopen a claim, the VA should inform the veteran to submit it and assist him, where possible, in obtaining it). Also, the Veteran and T.L. testified in March 2017 that they would be submitting additional private medical records including hospital records from Metroplex Community Hospital for breathing problems. To date, no records have been received. Consequently, these identified records should be associated with the file, if possible. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159. While the Board regrets the additional delay for this remand, it is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims on appeal. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ask the Veteran to submit or authorize VA to obtain the medical records for private psychiatric treatment from 1976 to 1978 and for his hospitalization for respiratory symptoms at Metroplex Community Hospital. He should also be asked to submit or authorize the records of any other medical caregiver who diagnosed and treated him for the claimed disabilities on appeal. All efforts to obtain these records must be documented in the file. Any negative replies must be in writing, and associated with the file. 2. Obtain all outstanding VA medical records of treatment for the claimed disabilities on appeal for the period from 1976 to 2001 and from 2014 to present. All attempts to obtain these records should be documented in the file. Any negative replies must be in writing, and associated with the file. 3. After substantially complying with the directives above and after conducting any additional development deemed appropriate, readjudicate the issues on appeal. If any benefit sought on appeal is denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran and his representative have 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). These claims 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). _________________________________________________ ANTHONY C. SCIRÉ, JR. 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) (2017).