Citation Nr: A21017013
Decision Date: 10/20/21	Archive Date: 10/20/21

DOCKET NO. 190422-8083
DATE: October 20, 2021

REMANDED

Entitlement to an effective date prior to June 8, 1998, for an award of service connection for head injury residuals is remanded.

REASONS FOR REMAND

The Veteran served on active duty from January 1983 to January 1987. 

The Board notes that the rating decision on appeal was issued in February 2019.  

The matter was before the Board in March 2020, at which time the claim was denied. Also denied was a claim alleging clear and unmistakable error (CUE) in an August 1993 rating decision which denied entitlement to service connection for head injury residuals. The Veteran appealed the denials to the Court of Appeals for Veterans' Claims (Court) which, pursuant to a Joint Motion for Remand (JMR), vacated the Board's decision and returned the matter to the Board. The Veteran subsequently, through his representative, made explicit that he did not wish to pursue the appeal with respect to CUE. Thus, the Board considers this appeal withdrawn. The claim for an earlier effective date for service connection for head injury residuals remains before the Board. 

1. Entitlement to an effective date prior to June 8, 1998 for an award of service connection for head injury residuals is remanded.

A remand of this claim is necessary to correct a pre-decisional duty to assist error. As noted above, this matter returns to the Board pursuant to a JMR which noted VA's failure to secure outstanding and potentially relevant medical records constructively in VA's possession, namely treatment records from a Dr. Rookey dated from 1991-1993. Dr. Rookey's November 2005 statement confirms he treated the Veteran as early as 1991, and the Veteran has averred that records associated with that treatment, which are presumed to have been within VA's possession during the Veteran's 1992 claim to reopen, would have constituted new and material evidence had they been before the RO within a year of the August 1993 rating decision when the Veteran's claim to reopen was denied. 

On remand, the RO must make appropriate efforts to secure all outstanding treatment records from Dr. Rookey dated from January 1991 onward. If those records are deemed unavailable, the RO must issue a formal finding to that effect. 

The matters are REMANDED for the following action:

1. Make appropriate efforts to obtain all outstanding VA treatment records from Dr. Rookey dated from January 1, 1991 onward. If the records cannot be obtained, a formal finding to that effect must be issued. 

2. Then, readjudicate the claim. 

 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Z. Sahraie, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.