Citation Nr: 21005430 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-19 591 DATE: February 1, 2021 REMANDED Whether new and material evidence has been received sufficient to reopen a claim of service connection for mitral valve prolapse is remanded. Whether new and material evidence has been received sufficient to reopen a claim of service connection for benign familial myoclonus is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1973 to February 1974. The issues on appeal were remanded by the Board in July 2018 for further development. Regrettably, additional development is still necessary. Whether new and material evidence has been received sufficient to reopen a claim of service connection for mitral valve prolapse is remanded. Whether new and material evidence has been received sufficient to reopen a claim of service connection for benign familial myoclonus is remanded. The Veteran’s appeal for service connection for benign familial myoclonus and mitral valve prolapse was previously denied by the Board in June 2010. The Veteran did not appeal this decision to the Court of Appeals for Veterans Claims and it immediately became final on issuance. Thus, the record must include new and material evidence to reopen his appeal. The appeal was remanded by the Board in July 2018. In that Remand, the Board noted that the Veteran’s attorney had requested copies of the curriculum vitae (CV) for each of the examiners who prepared VA Compensation and Pension examination reports in 1992, 1993, 2002, and 2009. While the Board noted that it was unclear how this information is specifically material to the present claim, it stated that it would oblige the Veteran’s attempts to obtain this information. It was further noted that such was not directly accessible to the Board of Veterans’ Appeals and could not be completed through a Privacy Act request as the Veteran has been informed in separate correspondence dated June 25, 2018. Accordingly, the Board Remanded the appeal so that the Veteran’s April 1992, May 1992, February 1993, August 2002, July 2009, and October 2009 VA examiners as listed in December 19, 2017 correspondence, be contacted to provide a copy of his or her curriculum vitae, resume, or medical credentials. It was noted that if any requested information was not obtainable, the Veteran should be advised of such and the reasons that the information could not be obtained noted in the record. Following the remand, the RO obtained the resumes of Dr. L.S. and Dr. C. A-W., (July 2009 and October 2009 examiners) however, it does not appear these were sent to the Veteran. Further, the claims file includes evidence of multiple requests made in order to obtain the information requested. In response to a request for information concerning the Veteran’s August 2002 medical opinion, a representative of the compensation and pension clinic of Nashville, Tennessee, stated that such information was not available, but also noted that the signature of the examiner was not legible. The Tuscaloosa, VA medical records office was contacted in search of the credentials for April 1992, May 1992, February 1993 VA examinations. A response from the Tuscaloosa VA medical center stated that one clinician was known, Dr. T.S., but outside of that, the correspondent was unaware of the other practitioners identified, it was noted that the email request was forwarded to compensation and pension and credentialing staff to see whether the other clinicians credentials could be obtained as they were no longer employed at the Tuscaloosa VA medical center. In a response from the Tuscaloosa VA medical center, it was noted that the request was closed on April 8, 2020 because the Veteran’s records had been transferred to the Jackson VA medical center since July 7, 2004. The Jackson VA responded to a request, stating “[t]he Jackson Release of Information Section is only responsible for providing paper records not available in Capri, we do not have access to the information that you are requesting.” It was noted that this was a negative response. Thereafter, in an August 2020 correspondence, the Regional Office Director stated that it had been determined that it would be futile to make further requests to obtain the credentials of the Veteran’s April 1992, May 1992 and February 1993 VA examiners. The letter stated that the VA medical center was contacted on July 17, 2020 to obtain medical records but that they responded, “negative response.” Thereafter, a supplemental statement of the case was issued and, in letters dated in October 2020 and December 2020, the Veteran’s representative requested all of the development and evidence listed in the September 2020 supplemental statement of the case including the curriculum vitae for Dr. L.S. As the evidence cited in the supplemental statement of the case includes the curriculum vitae for Dr. L.S., Social Security Administration records provided by the Veteran, and a notification letter sent to the Veteran regarding the availability of the credentials requested, the October 2020 and December 2020 requests for records is thus, for the most part, the same as those requests cited in the July 2018 Board remand. Initially, the Board notes that the Jackson VA medical center’s finding that it did not have access to the credentials requested did not, as suggested by the Regional Director, indicate that such were not available. Thus, additional attempts may be made to obtain the requested record. Further, it is unclear whether attempts were made to determine the identity of the August 2002 examiner who provided a medical opinion, or the records of Dr. T.S. who appears to be employed by VA. It is clear, however, that tracking down the requested records has been difficult and time consuming, and the Veteran has alluded to the delay in adjudication. Further, in October 2020 and December 2020 letters, the Veteran’s representative appears to have changed his request to receive evidence of the attempts made to obtain the requested records and the curriculum vitae of Dr. L.S. While the Board remains unclear as to how the credentials is material to the Veteran’s claim to reopen his appeals, further attempts will be made to obtain such information if such is still desired. To that end, as it is unclear whether the Veteran has changed his request for records, the Veteran and his representative should be contacted in order to determine whether they wish to continue a search for the credentials of the examiners stated above, or would like to obtain the credentials presently available, those of Dr. L.S. and Dr. C.A-W. Thereafter, as informed by the Veteran’s response, if requested, additional attempts to obtain the requested measures should be made and documented. Once such are obtained or when it is clear that these records are truly unobtainable, the Veteran should be provided with the records found and a complete documentation as to the attempts made to obtain such. The matters are REMANDED for the following action: 1. Contact the Veteran in order to determine whether he wishes to continue the RO’s search for the credentials of the April 1992, May 1992, February 1993 and August 2002 VA examiners. 2. Contact the examiners who conducted the VA examinations in April 1992, May 1992, February 1993, and August 2002, as listed in the December 19, 2017 correspondence from the Veteran’s attorney. (Although multiple requests have been made, this example is used as the most recent and complete listing.) 3. Request that each examiner provide a copy of his or her curriculum vitae, resume, or medical credentials. Upon receipt of such professional documentation, associate it with the record and provide the Veteran and his representative with a copy for review. If any requested CV or resume is not obtainable, the Veteran should be so advised and the reasons for such should be noted in the record. 4. Then readjudicate the claims remaining on appeal. If any of the benefits sought are not granted in full, furnish the Veteran and his representative with a supplemental statement of the case and an opportunity to respond, and return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Slovick, 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.