Citation Nr: 1803463 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 08-29 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, and if so, whether service connection is warranted for the same. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disability, and if so, whether service connection is warranted for the same. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of a rib fracture, and if so, whether service connection is warranted for the same. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right shoulder disability, and if so, whether service connection is warranted for the same. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability, and if so, whether service connection is warranted for the same. 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a nerve disorder (claimed as nerve damage), and if so, whether service connection is warranted for the same. 7. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an ear disorder to include a bilateral hearing loss disability, and if so, whether service connection is warranted for the same. 8. Entitlement to service connection for pneumonia or residuals thereof. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Pelican, Counsel INTRODUCTION The Veteran served on active duty in the Army from October 1979 to November 1979. This case comes before the Board of Veterans' Appeals (the Board) from a July 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As noted in the Board's November 2012 remand, in July 2007, the RO considered the claims for service connection for an acquired psychiatric disorder, right knee disability, shoulder disability, back disability, nerve disorder, ear disorder, and residuals of a rib fracture as "reopened," based on the receipt of newly obtained service treatment records. Review of those records, however, indicated they were only relevant with respect to the Veteran's claim for pneumonia. Thus, that issue is being reconsidered by the Board in accordance with 38 C.F.R. § 3.156(c) (2017). However, the remaining issues require the receipt of new and material evidence. The Veteran had a hearing before the undersigned Veterans Law Judge (VLJ) in October 2017. A transcript of that proceeding has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Preliminarily, there is some question as to the start and duration of the Veteran's active service. In his original September 1995 service connection claim, the Veteran indicated he entered active service in October 1979 and separated in November 1979. In an October 1995 statement the Veteran indicated he was in the Army as early as 1976, though an October 1995 VA Form 3101 indicated the Veteran's verified service was from October 1979 to November 1979. In the October 1995 statement, the Veteran also reported he was kept on active duty for an additional three months after his in-service accident. In April 1996, the RO informed the Veteran that the National Personnel Records Center had been unable to locate his records. In a May 1996 NA Form 13075, the Veteran indicated he entered active duty in October 1978 and left active duty in November 1980. A November 1996 VA Form 21-3101 indicated that no DD Form 214 was available, and that the Veteran's records were not found at the Army Reserve Personnel Center (ARPERCEN). In a February 1999 claim, the Veteran indicated he entered active service in April 1977 and separated in November 1978. A March 2000 VA Form 119 Report of Contact indicates that the RO reviewed the Army Reserve Personnel Command (ARPERSCOM) Registry and verified that the Veteran's record had been in transit to ARPERSCOM since February 15, 1980, concluding that the Veteran's record was lost. However, a September 2009 VA Form 21-3101 noted that the Veteran had another period of service from February 1972 to December 1974, but no records could be identified based on that information. During his October 2017 hearing, the Veteran reported enlisting in the Army in October 1978 and being discharged in December 1979. See October 2017 Hearing Transcript, pp. 5-6. Given that the Veteran has submitted additional statements regarding his period(s) of service and the absence of a DD Form 214 from the claims file, the AOJ should conclusively verify the Veteran's period(s) of active duty service. There appear to be outstanding records. A May 1995 letter from the Chief of the Medical Administration Service at the Durham VA Medical Center (VAMC) stated that the Veteran received regular treatment at that facility. See also October 1995 statement indicating the Veteran was receiving care at Durham VAMC and June 1998 Mental Health Intake Assessment noting Veteran received VA treatment in September 1994. In July 2013, the RO associated with the claims file records from Durham VAMC from May 1998 to August 2010 and Salem VAMC from July 1998 to June 2010. However, the May 1995 letter and supporting evidence indicates that VA medical records prior May 1998 remain outstanding. As these records could pertain to the Veteran's claims, they should be obtained. The Veteran has not been afforded a VA examination for his pneumonia claim. Excerpts of in-service clinical records received in August 2006 show the Veteran was hospitalized for an acute respiratory disorder, and diagnosed with mild pneumonia of the right lower lobe. Current medical records do not show a diagnosis of pneumonia residuals, however during his hearing the Veteran reported experiencing shortness of breath and difficulty breathing, including with exertion. See October 2017 Hearing Transcript, pg. 26. As the Veteran has asserted these symptoms are the result of his in-service pneumonia, a VA examination is appropriate. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following actions: 1. Verify through the appropriate agencies the specific dates of active service. In requesting such verification, note the discrepancies in the record described above. All efforts to verify the Veteran's dates of active service should be fully documented. 2. Take appropriate action to obtain VA treatment records not already of record, to include records from Durham VAMC prior to May 1998. If VA is unable to obtain these records, the Veteran must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 3. Schedule the Veteran for a VA examination to determine the nature and relationship to service of any diagnosed pneumonia residuals. The claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. Based on the review of the Veteran's claims file and examination of the Veteran, the examiner is asked to opine whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed residuals are caused by or related to service, including the of the Veteran's in-service acute respiratory disorder and pneumonia. The examiner must include a discussion of the underlying reasons for any conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Review the examination report for compliance with the Board's directives. Any corrective action should be undertaken prior to recertification to the Board. 5. Thereafter, take any additional actions deemed warranted and then readjudicate the issues on appeal. If any determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran should be afforded the applicable time period in which to respond. 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). _________________________________________________ MICHAEL A. PAPPAS 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).