Citation Nr: 0729492 Decision Date: 09/19/07 Archive Date: 10/01/07 DOCKET NO. 04-33 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of head trauma, claimed as difficulties with eating, walking, and talking; a nervous condition, and memory problems. REPRESENTATION Appellant represented by: Andrew M. Leblanc, Esquire ATTORNEY FOR THE BOARD Linda E. Mosakowski, Associate Counsel INTRODUCTION The veteran served on active duty in the Merchant Marines from November 1944 to July 1945 and in the Marine Corps from October 1945 to January 1947. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Responsibility for the veteran's claim lies with the RO in St. Petersburg, Florida. In October 2005, the Board issued a decision denying the veteran's service connection claim and the veteran filed an appeal. In May 2007, the Court of Appeals for Veterans Claims remanded the appeal to the Board for further development. After the appeal was remanded, the veteran submitted additional evidence that he requested be considered in the first instance by the agency of original jurisdiction (AOJ). 38 C.F.R. § 20.1304(c). That evidence has been made part of the veteran's claims folder and should be taken into account when the appeal is readjudicated. The appeal is REMANDED to the RO via the Appeals Management Center, in Washington, D.C. VA will notify the appellant if further action is required. REMAND The veteran requested assistance in obtaining medical records from his service with the Merchant Marines. The record shows that the AOJ sent many letters requesting those records, but did not receive them. If VA makes continued efforts to obtain relevant Federal records but is unable to obtain them and concludes that it is reasonably certain that they do not exist or further efforts to obtain them would be futile, VA must provide the claimant with oral or written notice of that fact. 38 C.F.R. § 3.159(e)(1). That notice must contain the following information: (i) the identity of the records VA was unable to obtain; (ii) an explanation of the efforts VA made to obtain the records; (iii) a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and (iv) notice that the claimant is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e)(1)(i) to (iv). Since the AOJ has not complied with those requirements, a remand is necessary to either obtain the Merchant Marine service medical records or comply with the notice requirements of 38 C.F.R. § 3.159(e)(1)(i) to (iv). In addition, the motion granted by the Court directs that the veteran be "advised of the relevance of buddy statements or other lay evidence to substantiate his treatment subsequent to the head injury." (Motion at page 4) The most recent medical treatment records in the claims file are from December 2004. Accordingly, the claims file should be updated with all medical treatment records since then. After the above development has been completed, schedule the veteran for an appropriate examination to determine the veteran's current disabilities and whether they are related to his head injury during service. The examiner's report should address his difficulties with eating, walking, and talking, with a nervous condition, and with memory problems. In response to prior examiners' comments that the symptoms were of recent onset, the veteran has now submitted several lay statements containing observations of his behavior in the past. The examiner should review the entire claims file, including the additional lay statement evidence, and state that he has done so. Moreover, in response to the Court's concern that reports by prior examiners were inadequate because they had not made clear that the service medical records pertaining to the inservice head injury had been reviewed, the examiner should describe the nature of the veteran's inservice head trauma, and in so doing, identify what information in the service medical records is being relied upon to make that assessment. The appellant is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2006). Finally, since the veteran has not been provided with notice that complies with Dingess v. Nicholson, 19 Vet. App. 473 (2006), such notice should be sent to him. Accordingly, the case is REMANDED to the Appeals Management Center in Washington, D.C., for the following action: 1. Send the veteran notice that complies with Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. Advise the veteran of the relevance of buddy statements or other lay evidence to substantiate his treatment subsequent to the head injury sustained during his Merchant Marine service. 3. Assist the veteran in obtaining evidence by seeking medical records of the veteran's Merchant Marine service. If after continued efforts to obtain those records, it is reasonably certain that they do not exist or further efforts to obtain them would be futile, provide the veteran with written notice of that fact compliant with 38 C.F.R. § 3.159(e)(1)(i) to (iv), that contains the following information: (i) the identity of the records VA was unable to obtain; (ii) an explanation of the efforts VA made to obtain the records; (iii) a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and (iv) notice that the claimant is ultimately responsible for providing the evidence. 4. Update the veteran's claims file with all treatment records since December 2004 from VA hospitals and other VA medical facilities, as well as with medical records from the private providers for whom the veteran supplies medical waivers. Associate any evidence obtained with the claims folder. 5. After the above development is completed, schedule the veteran for an appropriate examination. The claims file must be made available to the examiner and the examiner's report should indicate that the lay statements and service medical records relating to the veteran's head trauma were reviewed. All necessary tests should be given and any results from such tests should be addressed in the examiner's report. The examiner should describe the nature of the veteran's inservice head trauma, and in so doing, identify what information in the service medical records was relied upon to make that assessment. The examiner should also identify the veteran's diagnoses. With respect to each diagnosis, the examiner should provide an opinion, with complete rationale, as to whether it is at least as likely as not that the diagnosed condition is related to the head injury suffered during service with the Merchant Marines. In discussing the veteran's diagnoses and their relationship to his head trauma during service, please include a discussion of the following difficulties (about which the veteran has specifically complained): (a) with eating, walking, and talking; (b) with a nervous condition; and (c) with memory problems. 6. Then readjudicate the claim. If any sought benefit is denied, issue the veteran a supplemental statement of the case. After the veteran has been given an opportunity to respond, the claims file should be returned to this Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2006), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).