Citation Nr: 0115876 Decision Date: 06/11/01 Archive Date: 06/18/01 DOCKET NO. 99-17 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a seizure disorder. 2. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and V. W. ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel REMAND The veteran had active service from August 1969 to March 1971, and unverified service with the Army Reserve over the period of 1975 to 1995. The Board of Veterans' Appeals (Board) first notes that it is the veteran's primary contention that he has a seizure disorder that was incurred or aggravated during active duty for training with the Army Reserves on September 11, 1993. While some records that were apparently in the possession of the National Personnel Records Center (NPRC) were provided in June 1999, and the regional office (RO) has made numerous efforts to otherwise obtain all of the veteran's Army Reserve records from agencies such as the Army Personnel Records Center (ARPERCEN), the record does not sufficiently demonstrate why any additional efforts to obtain such records would be futile. Unfortunately, while the Board certainly understands why the RO would assume that it had exhausted all of the possible sources for these records, the recently enacted Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (hereafter VCAA), specifically requires that whenever the Secretary makes an effort to obtain records from a Federal department or agency, the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile (38 U.S.C.A. § 5103A(b)(3)). Thus, as the claims file does not reflect whether it is reasonably certain that any Army Reserve duty medical records for the period of 1975 to 1995 do not exist or that further efforts to obtain those records would be futile, the Board finds that it is constrained by this new legislation to remand this matter so that the NPRC and/or ARPERCEN can provide such information. Moreover, as the RO's decision to deny the veteran's claim was predicated on a finding that the appellant had not submitted evidence of a well-grounded claim, remand would also permit the RO to review their decision in light of the VCAA. The Board would like to further note that the veteran's long period of service with the Army Reserve apparently came to an end with his discharge from the 245th Maintenance Company, 4100 Goodfellow Blvd., St. Louis, Missouri 6310-1794, on May 4, 1995, and that Veterans' Benefits Administration (VBA)'s Adjudication Procedure Manual, M21-1, Part III, Paragraph 4.01(c)(6) provides that if the veteran is in a specific Army Reserve or National Guard unit, the records are sent to that unit. However, Paragraph 4.01(c)(7) provides that when the veteran no longer has a Reserve obligation or any other involvement with the Reserves or Guard, the records are furnished to the NPRC, and if the veteran's retires from the Reserves or the Guard, the records are then held at the ARPERCEN until the death of the veteran. Consequently, since the possibility exists that relevant Reserve records may have been in transit between the NPRC and the ARPERCEN at the time they were requested by the RO, the Board finds that the RO should again contact both NPRC and ARPERCEN concurrently for the subject records. In addition, although the unit administrator for the veteran's previous Reserve unit indicated in April 1999 that all of the veteran's records were transferred to ARPERCEN and not to the 245th Maintenance Company, the Board finds that the RO should also make an effort to obtain these records directly from the 245th Maintenance Company at the above- noted location. Initially, the Board notes that a review of the record indicates that at least some of the veteran's disabilities, established or claimed, have been neither clinically evaluated nor rated in accordance with applicable schedular criteria. More specifically, while the RO has considered the veteran's glaucoma, seizure disorder, and left knee arthritis, the record also discloses diagnoses of chronic obstructive pulmonary disease (COPD) and emphysema. VA's duty to assist the veteran includes, under appropriate circumstances, the obligation to conduct a thorough contemporaneous examination which includes consideration of prior medical treatment. Green v. Derwinski, 1 Vet. App. 121 (1991). While the Board notes that such an examination was scheduled for August 23, 2000, and possibly again for August 25, 2000, and the record reflects that the veteran failed to report for one or more examinations, the Board observes that the veteran had provided a change of address on his Department of Veterans Affairs (VA) Form 9 received on June 5, 2000, and it is not clear whether the notice for any scheduled examination was provided to the most recent address of record. Accordingly, to ensure that the VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should obtain the service medical records for the veteran's active service between 1969 and 1971. The RO should attempt to identify from appropriate authorities the veteran's periods of active duty for training and inactive duty training which occurred after March 1971. 2. The veteran should be asked to identify any sources of additional medical treatment for glaucoma, a seizure disorder, left knee arthritis, COPD and/or emphysema. Any medical records other than those now on file pertaining to the above-noted disorders should be obtained and associated with the claims folder. 3. In accordance with adjudicatory procedures, the RO should contact the 245th Maintenance Company located at 4100 Goodfellow Blvd., St. Louis, Missouri 6310-1794, and specifically request all of the veteran's medical records. The RO should also again make an effort to obtain the veteran's Army Reserve medical records directly from NPRC and ARPENCEN. The RO should therefore advise the 245th Maintenance Company, NPRC, and ARPENCEN that efforts to obtain any Army Reserve duty medical records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. 4. The RO should also take appropriate action to arrange for a VA general medical examination for pension purposes to determine the extent and severity of the veteran's disabilities. The claims file and a separate copy of this remand should be made available to and reviewed by the examiner in conjunction with the examination. Any further special examinations indicated as a result of the development of the veteran's case, including complaints made by the veteran or as a result of the general medical examination, should be accomplished. The examination reports should include a detailed description of the veteran's symptoms, clinical findings, and associated functional impairment; all indicated studies should be done. The examiner should identify the level of functional impairment associated with the disabilities shown. In addition, the examining specialist should opine what the cause of the veteran's seizures is. The veteran is advised that failure to report for the scheduled examination may have adverse consequences to his claim as the information requested on this examination addresses questions of causation and symptomatology that are vital in these claims. Where a claimant fails to report for an examination requested in a claim for pension benefits without good cause, the claim shall be denied. 38 C.F.R. § 3.655(b) (2000); Connolly v. Derwinski, 1 Vet. App. 566 (1991). 5. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should carefully review the examination report to ensure that it is responsive to and in complete compliance with the directives of this remand and if it is not, the RO should implement corrective procedures. The RO should then determine whether there is any additional notice and/or development action required in this matter under the VCAA, and if so, accomplish that additional notice and/or development action. 6. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome as to this issue. The appellant need take no action until otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. John E. Ormond, Jr. Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), 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) (2000).