Citation Nr: 0723032 Decision Date: 07/27/07 Archive Date: 08/06/07 DOCKET NO. 05-28 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for left-sided facial nerve damage with involvement of the left eye. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for transverse myelitis with weakness and spasticity of the right leg. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for gastrointestinal condition, including gastritis and esophagitis with diverticulitis. 4. Whether new and material evidence has been submitted to reopen a claim for service connection for back pain. 5. Whether new and material evidence has been submitted to reopen a claim for service connection for neurological disability other than transverse myelitis. 6. Whether new and material evidence has been submitted to reopen a claim for service connection for bladder disability. 7. Whether new and material evidence has been submitted to reopen a claim for service connection for weakness of the legs and ankles. 8. Whether new and material evidence has been submitted to reopen a claim for service connection for residuals of head trauma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Giannecchini, Counsel REMAND The veteran had active military service from July 1967 to July 1971. These matters come to the Board of Veterans' Appeals (Board) on appeal of March 2003 and February 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In a May 2007 VA Form 9 (Appeal to Board of Veterans' Appeals), submitted for the purpose of perfecting the veteran's appeal of his claim for service connection for left-sided facial nerve damage with involvement of the left eye, the veteran requested a Travel Board hearing. In documents submitted along with his VA Form 9, the veteran requested a hearing before RO personnel. Furthermore, the veteran also submitted a statement in which he made additional arguments concerning his other claims on appeal that involved petitions to reopen previously denied claims for service connection. A review of the claims file does not reflect that the veteran has been afforded an RO or Board hearing. Pursuant to 38 C.F.R. § 20.700 (2006), a hearing on appeal will be granted to a veteran who requests a hearing and is willing to appear in person. Under these circumstances, and in accordance with his request, the veteran must be provided an opportunity to present testimony in whatever forum he desires-before a RO hearing official, before the Board, or both. The Board also notes that the veteran has contended that a number of his claimed disabilities are due to exposure to trichloroethylene and other fuels/chemicals the veteran worked with while in service. In a February 2002 statement, the veteran reported that a physician at the VA Medical Center (VAMC) in Tomah, Wisconsin had informed him that his condition could be related to exposure to JP-4 fuel. In a May 2004 statement, the veteran reported that physicians at the Tomah VAMC had informed him that his conditions were service related and that he should be receiving service- connected compensation. Likewise, in an August 2005 statement, it was noted by the veteran that a physician at the Tomah VAMC could not believe the veteran was not service connected. The Board notes that a physician's statement framed in terms such as "could have been" is ordinarily not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); see also Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). The Board notes that, once VA has been put on notice of an alleged medical nexus opinion by a VA physician, it is obliged to fully investigate before adjudicating the veteran's claim. In this regard, VA has a duty to inform the veteran that he should seek a nexus/medical opinion from that physician in support of his claim. A review of the correspondence of record from the RO to the veteran does not reflect that any such notice has necessarily been provided. Therefore, the veteran should be informed of the need to seek a nexus/medical opinion from any VA physician who has reportedly informed him of the possible relationship between his current medical conditions and alleged chemical/fuel exposure during service. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007). For the reasons stated, this case is REMANDED for the following actions: 1. The RO should contact the veteran and clarify whether he desires a hearing before a RO hearing official, before the Board, or both. Schedule the veteran for each hearing he requests. (Any Board hearing should be scheduled after the development set out below is completed.) If the veteran no longer desires a hearing, a statement to that effect (preferably, a signed writing by the veteran) should be associated with the claims file. 2. The veteran and his representative should be sent a letter informing the veteran of the need to seek a medical or nexus opinion from any VA physician who has reportedly informed him that there is a possible relationship between any of his medical conditions and alleged chemical/fuel exposure during service. 3. After conducting any RO hearing requested by the veteran and undertaking any other development deemed appropriate by the hearing official, the veteran's claims on appeal should be re-adjudicated in light of all pertinent evidence and legal authority, to include any additional evidence received since the January 2007 supplemental statement of the case (SSOC) and April 2007 statement of the case. 4. If any benefit sought is not granted, the veteran and his representative should be furnished with a SSOC and afforded an opportunity to respond. (If the veteran still desires a hearing before the Board, this hearing should be scheduled after the aforementioned actions are completed.) Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2006).