Citation Nr: 21077346 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-34 468 DATE: December 29, 2021 REMANDED Whether new and material evidence has been received to reopen a previously denied claim of service connection for a heart murmur is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for headaches to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for chronic laryngitis to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for obstructive sleep apnea to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for residuals of a head injury to include as secondary to service-connected disease or injury is remanded. Entitlement to a rating in excess of 10 percent for a bilateral hearing loss disability is remanded. Entitlement to a rating in excess of 10 percent for tinnitus is remanded. Entitlement to a rating in excess of 10 percent for a head laceration with residual disfiguring scar is remanded. Entitlement to a rating in excess of 20 percent for diabetes mellitus with erectile dysfunction is remanded. Entitlement to a rating in excess of 30 percent for right carpal tunnel syndrome is remanded. Entitlement to a rating in excess of 20 percent for left carpal tunnel syndrome is remanded. Entitlement to an effective date prior to May 6, 2014 for the grant of service connection for a bilateral hearing loss disability is remanded. Entitlement to an effective date prior to May 6, 2014 for the grant of service connection for tinnitus is remanded. Entitlement to an effective date prior to August 5, 2015 for the grant of service connection for a head laceration with residual disfiguring scar is remanded. Entitlement to an effective date prior to May 6, 2014 for the grant of service connection for diabetes mellitus with erectile dysfunction is remanded. Entitlement to an effective date prior to May 6, 2014 for the grant of the 30 percent rating for right carpal tunnel syndrome is denied. Entitlement to an effective date prior to May 6, 2014 for the grant of the 20 percent rating for left carpal tunnel syndrome is denied. REASONS FOR REMAND The Veteran had active service from September 1966 to March 1989. The Veteran was awarded a Combat Action Ribbon, among other decorations. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran's claims currently on appeal in October 2019. The Veteran's claims folder has returned to the Board for further appellate consideration. In October 2019, the Board also remanded a claim of service connection for low back pain. In a subsequent rating decision dated January 2021, this claim was granted. In view of the foregoing, this issue has been resolved and is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997). The Board additionally remanded a claim of service connection for asbestosis in October 2019 for issuance of a statement of the case (SOC). A SOC was thereafter issued in January 2020. Pertinently, the Veteran did not thereafter complete his appeal of the claim with the filing of a substantive appeal (VA Form 9). Accordingly, that issue is not in appellate status and will be discussed no further herein. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. New and material evidence for heart murmur; service connection for acquired psychiatric disorder, prostate cancer, headaches, chronic laryngitis, obstructive sleep apnea, and residuals of head injury; higher evaluations for bilateral hearing loss disability, tinnitus, diabetes mellitus with erectile dysfunction, head laceration with residual disfiguring scar, right carpal tunnel syndrome, and left carpal tunnel syndrome; and earlier effective dates for the awards of bilateral hearing loss disability, tinnitus, head laceration with residual disfiguring scar, diabetes mellitus with erectile dysfunction, right carpal tunnel syndrome, and left carpal tunnel syndrome The Board remanded the Veteran's claims on appeal in October 2019, in pertinent part, for the agency of original jurisdiction (AOJ) to obtain inpatient treatment records from San Diego Naval Hospital from December 17, 1966 to January 4, 1967 and any VA treatment records dated prior to April 10, 2009. The AOJ was also directed to obtain the Veteran's complete VA vocational rehabilitation counseling folder as an April 1990 document in the claims folder documented a Chapter 31 eligibility determination. The remand further notified the AOJ that if the records were not able to be obtained, then the Veteran should be notified of such. Pursuant to the October 2019 Board remand, the AOJ attempted to obtain the aforementioned outstanding records; however, the AOJ received negative results. Crucially, the Veteran was not provided with notice pursuant to 38 C.F.R. § 3.159(e) that these records were not able to be obtained. Under 38 C.F.R. § 3.159(e), if VA makes reasonable efforts to obtain relevant non-Federal records but is unable to obtain them, or after continued efforts to obtain Federal records concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA will provide the claimant with oral or written notice of that fact. 38 C.F.R. § 3.159(e). The notice must contain the identity of the records VA was unable to obtain, an explanation of the efforts VA made to obtain the records, a description of any further action VA would take regarding the claim, and notice that the Veteran is ultimately responsible for providing the evidence. Id. No such notice was provided to the Veteran in this matter. As such, the Board finds it has no choice but to remand the claims on appeal and direct the AOJ to inform the Veteran of the unavailability of records from San Diego Naval Hospital from December 17, 1966 to January 4, 1967, VA treatment records dated prior to April 10, 2009, and the Veteran's vocational rehabilitation counseling folder pursuant to 38 C.F.R. § 3.159(e), and provide him the opportunity to provide a copy of the identified records to the VA. The Board adds that, in regard to the negative finding from the AOJ that the Veteran's vocational rehabilitation counseling folder could not be obtained, a record dated November 2019 notes that the Veteran did not apply for Chapter 31 benefits. However, this finding is at odds with the April 1990 Chapter 31 eligibility determination. Therefore, the Board finds that on remand, another attempt should be made to obtain the Veteran's vocational rehabilitation folder to include a search for the folder from 1989 or 1990. As discussed in the previous Board remand, the aforementioned VA records could potentially aid in substantiating the claims. See Jones v. Wilkie, 918 F.3d 922, 926 (Fed. Cir. 2019) (the duty to assist in obtaining VA records is not discharged "based on a mere belief that the likelihood of finding a record substantiating a veteran's claim is 'low' or 'extremely low'"). The matters are REMANDED for the following action: 1. Notify the Veteran of the unavailability of his records pertaining to inpatient treatment at San Diego Naval Hospital from December 17, 1966 to January 4, 1967 as well as VA treatment records dated prior to April 10, 2009 pursuant to 38 C.F.R. § 3.159(e). He must then be given an opportunity to respond. 2. Obtain and associate the Veteran's complete VA vocational rehabilitation counseling folder which may be dated from 1989 or 1990, to include all evaluations and narrative reports. If the records are not available, the claims file should be annotated to reflect such, and the Veteran notified of such. (Continued on the next page) 3. Review the claims file to ensure that the foregoing requested development is completed and arrange for any additional development indicated. If the benefits sought remain denied, issue an appropriate supplemental statement of the case to the Veteran and his representative. Mike Sobiecki Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Arif Syed, 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.