Citation Nr: 1805945 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-01 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for residuals of a head injury. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for a left hip disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1970 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied service connection claims for residuals of a head injury, a back disability, and a hip disability. The Veteran testified at a Travel Board hearing from the RO in February 2016. A transcript of that hearing is of record. The Veterans Law Judge who conducted that hearing is no longer at the Board. Accordingly, the Veteran was offered an opportunity to testify at another hearing before the Board, which he declined. See October 2017 Correspondence. In April 2016, the Board remanded this matter for further development. Unfortunately, for the reasons discussed below, yet another remand is warranted. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide his claims so he is afforded every possible consideration. This matter was remanded by the Board in April 2016 for additional development. The Board directed the RO to obtain VA examinations and VA treatment records. The Board further directed the RO to make reasonable efforts to obtain inpatient hospital records from Kincheloe Air Force Base and military and local police records concerning the Veteran's motor vehicle accident. The RO was also instructed to assist the Veteran in obtaining private treatment records, and to provide the Veteran an opportunity to submit additional lay statements. The claims file does not indicate that records, such as military police log books, command duty or watch office records, local police records, or public safety records were requested. In light of the foregoing, the Board finds that there was not substantial compliance with the Board's April 2016 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Upon remand, the RO must make reasonable efforts to obtain these records. Additionally, in the February 2016 Travel Board hearing, the Veteran indicated the motor vehicle accident that caused his injuries occurred in the winter of 1971 at Kincheloe Air Force Base. VA requested inpatient hospital records from Kincheloe Air Force Base from January 1, 1971 to December 31, 1971. VA informed the Veteran in February 2017 that inpatient clinical records could not be located and that further attempts to obtain these records would be unsuccessful. However, the Veteran also indicated the motor vehicle accident occurred in 1973. See Veteran's January 2011 Application for Compensation and/or Pension. Thus, any of the Veteran's inpatient hospital records for a motor vehicle accident may not have been captured by the original search. The date of the motor vehicle accident must be confirmed with the Veteran and if it occurred in 1973, a new search for inpatient hospital records from Kincheloe Air Force Base must follow. If new medical records are obtained after the above is completed, an addendum medical opinion must be obtained as to the etiology of the Veteran's current disabilities. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to verify the approximate date of the motor vehicle accident that he was involved in that occurred while he was in active duty service and additional details related to the motor vehicle accident, to including the full names of any witnesses or other individuals involved. It should be brought to the Veteran's attention that on his January 2011 Application for Compensation and/or Pension he reported that the motor vehicle accident occurred in 1973, as opposed to 1971. 2. Then, if a different date of the motor vehicle accident than previously used to search for inpatient hospital records from Kincheloe Air Force Base (i.e., other than 1971) is obtained, request inpatient hospital records for the verified date gathered from the above development. If any identified records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented. 3. Make reasonable efforts to obtain pertinent military records, such as military police log books or other records, command duty or watch office records, local police or public safety records, or any other records that may have been created as a result of the Veteran's motor vehicle accident at Kincheloe Air Force Base. If any identified records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented. 4. Make arrangements to obtain the Veteran's VA medical treatment records, dated from January 2016, forward. 5. Thereafter, if new inpatient medical records from Kincheloe Air Force Base are obtained after the above is completed, provide the complete claims file to the VA examiner who provided the December 2016 examination, or if unavailable, another qualified VA medical professional, to address any new information obtained concerning the Veteran's motor vehicle accident in an addendum opinion as to the etiology of the Veteran's current disabilities. The examiner must address whether this new evidence changes her prior opinions with regard to the following: (a) whether it is at least as likely as not (50 percent probability or greater) that any residuals of a head injury identified are the result of injuries sustained by the Veteran during service or are otherwise related to service. (b) whether it is at least as likely as not (50 percent probability or greater) that any back disabilities identified are the result of injuries sustained by the Veteran during service or are otherwise related to service. (c) whether it is at least as likely as not (50 percent probability or greater) that any left hip disabilities identified are the result of injuries sustained by the Veteran during service or are otherwise related to service. (d) The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology must be specifically acknowledged and considered in formulating any opinions concerning the onset of his disability. If the examiner rejects the Veteran's reports regarding the onset of his symptoms, the examiner must provide a reason for doing so. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 6. After completing the above, review any medical examination reports to ensure that they adequately respond to the above instructions, including that they provide an adequate explanation in support of the opinion stated. If any report is deficient in this regard, return the case to the examiner(s) for further review and discussion. 7. Finally, after the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claims on the merits. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ P.M. DILORENZO 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).