Citation Nr: 21006402 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 18-36 532 DATE: February 4, 2021 ORDER The application to reopen the claim of entitlement to service connection for bilateral upper neuropathy is remanded. The application to reopen the claim of entitlement to service connection for bilateral lower neuropathy is remanded. The application to reopen the claim of entitlement to service connection for diabetes mellitus is remanded. The application to reopen the claim of entitlement to service connection for heart disease is remanded. REMANDED The Veteran served on active duty for training (ACDUTRA) in the United States Army from October 1960 to April 1961, with additional subsequent service in the Army Reserves. In a November 2019 decision (Board Decision) the Board of Veterans’ Appeals (Board) denied the Veteran’s request to reopen his claims to establish service connection for his (1) bilateral upper neuropathy, (2) bilateral lower neuropathy, (3) diabetes mellitus, and (4) heart disease, based on its finding that evidence submitted since the May 2013 final rating decision was not new and material. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (CAVC or Court). In September 2020 the Court granted the Parties’ Joint Motion for Partial Remand (JMPR), vacating the parts of the Board’s decision which denied these claims and remanding them back to the Board for further development and readjudication. To comply with the terms of the JMPR, the Board, in turn, is remanding these claims to the agency of original jurisdiction (AOJ) for action consistent with the JMPR. The November 2019 Board Decision also included the dismissal of the Veteran’s claims related to his (1) obstructive sleep apnea; and (2) arthritis, however, the Veteran has not challenged those dismissals. Therefore, these issues were not part of the remand included in the JMPR, and they are not part of this Board decision. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). In the JMPR, the Parties agreed that the Board erred by not providing an adequate statement of reasons or bases to support its decision. See 38 U.S.C. § 7104(d)(1). An adequate Board decision must be supported by a statement of reasons or bases which explains the basis of all material findings and conclusions. 38 U.S.C. § 7104(d)(1). This requires the Board to analyze the probative value of the evidence, account for that which it finds persuasive or unpersuasive, and explain why it rejected evidence materially favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Parties specifically agreed that the Board did not provide an adequate statement of reasons or bases explaining whether it complied with VA’s duty to assist the Veteran by not obtaining evidence discussed at his Board hearing, or other relevant records held by other Federal department or agency as described in 38 C.F.R. § 3.159(c)(3), which relate to the Veteran’s contention that there were toxins and/or chemicals at Fort McClellan. The VA’s duty to assist includes making reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim, including in the determination whether to reopening cases. 38 U.S.C. § 5103A(a)(1); 38 C.F.R. § 3.159(c). VA is required to make efforts to obtain any other relevant records held by any Federal department or agency. 38 C.F.R. § 3.159(c)(3). During his Board hearing, the Veteran stated his belief that there exists at least one U.S. Environmental Protection Agency (EPA) report related to toxic chemicals at Fort McClellan during the period he served there. He also expressed his belief that there was at least one lawsuit filed by the City of Anniston, Alabama, against the government and a local chemical company related to toxic chemicals in the area, as well as a media report from CBS, believed to be an investigative report from 60 minutes. Board Hearing Transcripts, September 16, 2019, pages 4-6. The Board finds that additional evidentiary development is required to comply with the terms of the JMPR. As detailed above, the Veteran has identified three pieces of evidence that he believes exist that he wants VA to help him obtain. However, 38 C.F.R. § 3.159(c)(3) indicates that the Veteran must provide enough information to identify and locate the existing records including the custodian or agency holding the records and the approximate time frame covered by the record. Thus far, the Veteran has not done this. On remand, the Veteran will be asked to do so. With regard to the CBS 60 Minutes report that he describes, he has not indicated that it is in the possession of a federal government agency, nor has he provided either the location of this evidence or the approximate date of this evidence. Assuming that this evidence is located outside of a federal government entity, if the Veteran wants VA to attempt to obtain it, he must provide the entity that possesses it, to include a contact name, as well as the approximate date. In addition, the Veteran needs to provide an explanation or contention as to why this treatise information that is not specific to him is relevant to his appeals. While the Veteran has been given numerous opportunities to provide additional information, upon remand, he will be given one more opportunity to do so. The Veteran is permitted to submit additional evidence and argument in support of his claims, consistent with the terms of the JMPR and current caselaw. The matters are REMANDED for the following action: 1. Contact the Veteran with a letter that tells him that he must provide the following information in order for VA to assist him in requesting the evidence he has identified: (a.) The approximate date of the EPA study he mentioned at his Board hearing. (b.) The approximate date of the lawsuit he believes was filed by the city of Anniston, Alabama as well as the venue (local, state, or federal court) that the lawsuit was filed in. (c.) The location of the CBS 60 Minutes report he believes exists, to include an individual to contact, as well as the approximate date of the report. (d.) An explanation as to why the Veteran believes that each piece of this treatise and general evidence is relevant to his specific experience and appeal. 2. Only if the Veteran provides the information contained in (a)-(d) above, attempt to obtain the evidence identified by the Veteran. (Continued on the next page)   3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, Associate 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.