Citation Nr: 18155536 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 09-42 874 DATE: December 4, 2018 REMANDED Entitlement to service connection for residuals of a head injury, to include a right-side facial scar, memory loss, and headaches, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1964 to July 1967, including service in the Republic of Vietnam from April 1966 to October 1966. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In April 2012, the Veteran and his significant other testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In November 2012, July 2015, and August 2017, the Board remanded the case for additional development and it now returns for further appellate review. As noted in the August 2017 remand, the Board observes that the Veteran has also perfected an appeal as to the issue of entitlement to a rating in excess of 50 percent for posttraumatic stress disorder; however, as he has requested a Board hearing before a Veterans Law Judge in connection with such appeal, that issue will be the subject of a separate Board decision issued at a later date. Entitlement to service connection for residuals of a head injury, to include a right-side facial scar, memory loss, and headaches. The Board remanded this matter in August 2017 in order for the Agency of Original Jurisdiction (AOJ) to attempt to obtain potentially outstanding VA treatment records from the New York, New York, VA Medical Center (VAMC). In this regard, in March 2017, the Veteran reported that he received treatment in 1969 for his right-side facial scar through such VA system. The remand further indicated that, if any records could not be obtained after reasonable efforts had been made, the AOJ should issue a formal determination that such records did not exist or that further efforts to obtain such records would be futile; and that 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 C.F.R. § 3.159(e). Upon remand, as noted in an August 2017 written correspondence, the AOJ conducted an enterprise search after researching CAPRI and CAATS for any records pertaining to VA treatment from the New York, New York, VAMC dated in 1969, and such search yielded no results. Thereafter, as indicated in a May 2018 report, the AOJ contacted the Veteran via telephone in regard to such search results. At such time, he indicated that he remembered being seen at the Manhattan, New York, VAMC in 1968 or 1969 despite CAPRI showing no record of him ever being treated in NY. In response, the AOJ reported that such VAMC would be contacted by submitting a VA Form 10-7131, Exchange of Beneficiary Information and Request for Administrative Action. Later that same month, the AOJ submitted the above VA Form to the New York, VAMC, Manhattan Campus in order to obtain all outstanding VA treatment records from the New York, New York, VAMC dated in 1969. At such time, it was noted that the Veteran had reported that such treatment may have occurred in 1968. Shortly thereafter, a response was received which indicated that “a search was conducted by the Permanent File Unit, Supervisor and no records were found for the time period requested.” The Board acknowledges that the September 2018 supplemental statement of the case reports the above information with respect to the negative responses received for the requested VA treatment records. However, the AOJ did not separately notify the Veteran that it was unable to obtain the records, and provide him the opportunity to submit such records following the May 2018 response to the submitted VA Form 10-7131. The Board finds such notice inadequate as it did not identify the records VA was unable to obtain, did not explain the efforts VA made to obtain the records, and did not provide notice that VA would be deciding the claim without the evidence unless the Veteran submitted them. As such, remand is required so that the Veteran can be provided proper notice in such regard. See 38 C.F.R. § 3.159(e); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that, to date, the Veteran has not been afforded a VA examination in connection with his claim for service connection for residuals of a head injury, to include a right-side facial scar, memory loss, and headaches. Here, while the Veteran has provided a description of the nature of the in-service incident that he believes led to a head injury, such in-service incident has not been confirmed. However, following the development ordered in connection with this remand, the AOJ should review the complete record and conduct any additional indicated development with regard to this claim, to include, if necessary, affording the Veteran a VA examination. The matter is REMANDED for the following action: 1. Advise the Veteran that VA treatment records from the New York, New York, VAMC dated in 1968/1969 are unavailable pursuant to 38 C.F.R. § 3.159(e). Specifically, he should be notified of the attempts made to obtain such records and why further attempts would be futile, and allowed the opportunity to provide such records. 2. Thereafter, the AOJ should review the complete record and conduct any additional indicated development with regard to this claim, to include, if necessary, affording the Veteran a VA examination. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel