Citation Nr: 0736696 Decision Date: 11/21/07 Archive Date: 12/06/07 DOCKET NO. 03-09 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for recurrent brain stem hemorrhages resulting from an arteriovenous malformation. REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney at Law ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The appellant had inactive duty training from September 1961 to April 1965 as a member of the Senior Reserve Officer's Training Corps (ROTC). His enrollment in the ROTC included a period of active duty for training in June and July 1964. He was also a member of the Army Reserves from November 1964 to April 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2002 and May 2003 rating decisions of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claims seeking entitlement to a total disability rating based on individual unemployability (TDIU) and entitlement to service connection for brain stem hemorrhages resulting from an arteriovenous malformation, respectively. The Board denied the veteran's claims in an April 2006 decision. The veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2007, while this case was pending before the Court, the Office of General Counsel for VA, on behalf of the Secretary and the appellant filed a Joint Motion for Remand and to Stay Proceedings. The motion was to vacate the April 2006 decision by the Board, that denied service connection for the brain stem hemorrhages and to remand this matter for readjudication. The parties agreed to dismissal of the TDIU claim. The Joint Motion was granted by a June 2007 Court Order which remanded the service connection claim and dismissed the TDIU claim. The issue of and entitlement to service connection for brain stem hemorrhages is returned to the Board for further consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND In the May 2007 joint motion for remand which was granted by the Court, it was pointed out that evidentiary deficiencies were present in the April 2006 Board decision. Specifically, it was found that the Board had failed to provide adequate reasons and bases for its denial of entitlement to service connection for recurrent brain stem hemorrhages resulting from an arteriovenous malformation. As pointed out by the Joint Motion, in cases where the veteran's service medical records are unavailable through no fault of his own, there is a "heightened duty" to assist him in the development of the case. See; Washington v. Nicholson, 19 Vet. App. 362, 370-371 (2005). This heightened duty includes the obligation to search for alternate medical records. See Moore v. Derwinski, 1 Vet. App. 401 (1991), O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Here it was admitted that the veteran's records were unavailable but the Board had failed to address whether the VA complied with its duty to assist in attempting to retrieve his unavailable service records pursuant to 38 C.F.R. § 3.159 or whether he was properly notified of the inability to retrieve these records. The Board was also noted to have failed to consider the heightened duties in light of the unavailable service records. The Board notes that there is evidence of record currently linking the veteran's recurrent brain stem hemorrhages to a training accident during ROTC that was said to have taken place in April 1965 when he allegedly fell about 35 feet from a cable into water and began having multiple neurological problems including double vision, headaches and left arm and leg weakness following this accident. The opinion from a May 2005 VA neurological examination stated that the veteran's recurrent brain stem hemorrhages arising from a preexisting arteriovenous formation was at least as not aggravated by this alleged accident. An October 2007 opinion from a VA independent medical evaluation likewise stated that the recurrent brain stem hemorrhages resulting from an arteriovenous malformation were more likely than not incurred or aggravated by this alleged 35 foot fall. Thus it does not appear that further examination would be necessary if the fall resulting in injury were to be verified to have taken place during active duty or inactive duty for training. See 38 C.F.R. § 3.6 (2007). Currently such a fall has not been verified by service records. A review of the actions taken by the AOJ prior to the Board's April 2007 decision fails to demonstrate that the veteran was put on notice as to the heightened duty to assist in light of the missing records. Because of this, the AOJ should advise him that he may submit alternative evidentiary materials. This evidence may be statements from service medical personnel, "buddy" statements, employment physical examinations, insurance examinations, pharmacy prescription records, letters written during service, etc. The veteran should be informed of these alternative documents and be given an opportunity to more fully develop his case. He should also be asked to complete and return NA Forms 13055 ("Request for Information Needed to Reconstruct Medical Data") and 13075 ("Questionnaire about Military Service"). Thereafter an attempt should be made to obtain alternate evidence of this fall during ROTC training that was said to have aggravated his recurrent brain stem hemorrhages. Additionally, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet App. 473, which held that the VA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. In the present appeal, the veteran was not advised of the evidence necessary to establish an initial disability rating or effective date, if service connection were awarded for the claimed disability on appeal. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim on appeal and to ensure full compliance with due process requirements, the case is REMANDED to the AOJ for the following development: 1. The AOJ must review the entire file and ensure for the issue appeal that all notification and development necessary to comply with 38 U.S.C.A. §§ 5103(a) and 5103A (West 2002 & Supp. 2006) and 38 C.F.R. § 3.159 (2007) is fully satisfied. In particular, VA must send the veteran a corrective notice, that includes: (1) an explanation as to the information or evidence needed to establish a disability rating and an effective date, if service connection is granted, as outlined by the Court in Dingess v. Nicholson, 19 Vet App. 473, and (2) requests or tells the veteran to provide any evidence in his possession that pertains to his claim. The claims file must include documentation that there has been compliance with the VA's duties to notify and assist a claimant as specifically affecting the issue on appeal. 2. The AOJ should notify the veteran that he can submit alternate evidence, including, but not limited to, statements from service medical personnel, "buddy" certificates or affidavits, employment physical examinations, medical evidence from hospitals, clinics and private physicians by which or by whom a veteran may have been treated, especially soon after discharge, letters written during service, photographs taken during service, pharmacy prescription records, and insurance examination reports. The AOJ should ask the veteran to complete and return NA Forms 13055 ("Request for Information Needed to Reconstruct Medical Data") and 13075 ("Questionnaire about Military Service"). 3. Thereafter, the AOJ should the contact the National Personnel Records Center (NPRC), and any other appropriate state and federal agency, and request that a search of alternate sources be made for records concerning the veteran's treatment during active ROTC training in April 1965 for head injuries sustained in a fall, if any. The AOJ should also request all secondary sources of service medical records, including inpatient records, sick and morning reports. Any information obtained by the veteran's responses to the AOJ's actions set forth above in #2 should be utilized in this search for evidence. The AOJ should associate all requests and records received with the claims file. If records are unavailable, a negative reply is requested. 4. Following completion of the above development, the AOJ should readjudicate the veteran's claim. If the benefit sought on appeal remains denied, the veteran should be provided a supplemental statement of the case, which reflects consideration of all additional evidence, including the reserve medical records. It must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and discussion of all pertinent regulations. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The purposes of this remand are to comply with due process of law and to further develop the veteran's claims. No action by the veteran is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. 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. 2007). _________________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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).