Citation Nr: 1800174 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 13-18 490A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right foot disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a cervical spine disability. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a thoracolumbar spine disability. 4. Entitlement to service connection for residuals of head injuries. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Anderson, Counsel INTRODUCTION The Veteran served on active duty from February 1975 to August 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2016, the Veteran was scheduled for a hearing before a member of the Board. However, despite being notified of the hearing in June 2016 letters, the Veteran did not appear at the hearing and has not shown good cause not appearing. Therefore, his request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2017). This case was previously before the Board in November 2016, when it was remanded for additional development. Unfortunately, another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND While further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. There appear to be outstanding VA and private treatment records. A June 27, 2017 VA treatment record indicates that the Veteran was incarcerated but was scheduled to be admitted for VA inpatient treatment on July 24, 2017. To date, treatment records from the Florida Department of Corrections and VA treatment records subsequent to June 27, 2017 have not been associated with the claims file. Additionally, VA treatment records from July 31, 2013, June 19, 2012, May 18, 2012, November 13, 2006, August 15, 2006, July 18, 2006, June 30, 2006, and January 3, 2005 indicate that unidentified fee basis treatment records and emergency room documents had been scanned into VistA Imaging. Nevertheless, the referenced records have not been associated with the claims file. On remand, reasonable efforts should be made to obtain records from the Florida Department of Corrections and all outstanding VA treatment records, to include the VistA Imaging records, must be associated with the claims file. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, there has not been substantial compliance with the prior remand directives. In pertinent part, the November 2016 remand directed that all outstanding service treatment records from 1975 to 1983 be obtained and that the claims be readjudicated in a supplemental statement of the case prior to being returned to the Board. While additional service treatment and service personnel records were received in February 2017, as noted in a March 2017 follow up request, those records did not encompass the time period specified in the remand. Subsequent to the March 2017 follow up request, neither additional records nor a negative response have been received. Additionally, the case was returned to the Board without being readjudicated in a supplemental statement of the case. On remand, the AOJ should make another attempt to locate the Veteran's service treatment records from 1975 to 1983 and the claims should be readjudicated in a supplemental statement of the case prior to being returned to the Board. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following actions: 1. Obtain any available updated VA treatment records dated since June 27, 2017, as well as the VistA Imaging records referenced in the July 31, 2013, June 19, 2012, May 18, 2012, November 13, 2006, August 15, 2006, July 18, 2006, June 30, 2006, and January 3, 2005 VA treatment records, and associate them with the claims file. If requested records are not available, the claims file should be annotated to reflect such and the Veteran notified of such. 2. Obtain any outstanding service treatment records dating from 1975 to 1983. See July 2012 Memorandum; March 2017 email correspondence. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) (2012) and 38 C.F.R. § 3.159(e) (2017). 3. Ask the Veteran to provide the names and addresses of all medical care providers, including the Florida Department of Corrections, who have recently treated him for his disabilities on appeal. After securing any necessary releases, the AOJ should request any relevant records identified. If any requested records are unavailable or do not exist, the claims file should be annotated to reflect such and the Veteran notified of the same. 4. After completing the requested actions, and any additional action deemed warranted, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran 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 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. §§ 5109B, 7112 (2012). _________________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).