BVA9501696 DOCKET NO. 93-03 894 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a previously denied claim seeking service connection for the residuals of a head injury, including a scar of the scalp. 2. Entitlement to service connection for a herniated disc at L5- S1. 3. Entitlement to service connection for arthritis of the lumbar spine. 4. Entitlement to service connection for headaches. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to an increased rating for musculoskeletal low back strain, currently rated 10 percent disabling. 7. Entitlement to an increased (compensable) rating for the residuals of left epididymitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.P. Dean, Counsel INTRODUCTION The appellant served on active duty in the Armed Forces from April 1986 to April 1989. He subsequently served in the Army National Guard in the State of Texas until approximately May 1991. This matter comes before the Board of Veteran's Appeals (Board) on appeal from rating determinations by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). During the course of this appeal, the appellant has also made reference to disabilities of the left forearm and hand and of the right thigh for which he feels entitled to compensation from VA; however, he has also indicated that he feels that these disabilities are to be included among the manifestations of the herniated lumbosacral disc, which is included in the issues currently certified to the Board. The appellant has also asserted claims seeking reimbursement for certain travel expenses and for the cost of certain prescriptions. These claims would fall under the jurisdiction of the appropriate VA Medical Center and would also depend upon the outcome of the current claims seeking service connection for several additional disabilities. However, depending upon the outcome of the current claims, these additional claims should be referred by the RO to the appropriate VA Medical Center for further action. REMAND The appellant claims that he suffered a series of seven separate accidental injuries between June 1989 and May 1991 which directly resulted in all of the disabilities for which he currently claims entitlement to service connection. He further contends that he is entitled to compensation from VA for the results all of these injuries because he was serving on active duty for training with the Army National Guard in the State of Texas when he incurred each of the seven injuries in question. See 38 U.S.C.A. §§ 101(22) and (24), 1131 (West 1991). However, as of the present time, his precise duty status at the time of each of the claimed injuries has not been verified either by the relevant service department or by his unit in the Army National Guard. This information is absolutely vital before further appellate review of those claims can proceed. In an Informal Hearing Presentation to the Board, dated in August 1993, the appellant's representative specifically advanced the argument that the claimed herniated lumbosacral disc and/or arthritis of the lumbar spine might be direct and proximate results of the service-connected low back strain, thereby warranting service connection under 38 C.F.R. § 3.310 (1993). A liberal reading of the appellant's various written statements could also reflect some support for this argument. See EF V. Derwinski, 1 Vet.App. 324 (1991). The RO has not yet considered this aspect of the current claims which, in any case, requires the development of independent medical evidence in the form of medical opinions as to the origin of the claimed disabilities. By rating action dated in February 1990, the RO denied entitlement to service connection for the residuals of a back injury and for the residuals of a head injury, and also assigned a noncompensable rating for the residuals of left epididymitis. Although the appellant initiated an appeal from that rating action by a Notice of Disagreement filed in April 1990, the evidence fails to demonstrate that he perfected that appeal by filing a valid Substantive Appeal on or before March 2, 1991, as required by 38 C.F.R. §§ 20.200, 20.302(b) (1993), although he had been informed in writing of that requirement on several occasions. Subsequently, service connection was granted for musculoskeletal low back strain, effective from date of discharge from service; and the current claims for service connection for lumbar arthritis and a herniated lumbosacral disc appear to involve enough new elements as to constitute wholly new claims. However, it appears that the February 1990 rating action is administratively final under 38 U.S.C.A. § 7105 (West 1991) with respect to the issue of service connection for residuals of a head injury (although the claim seeking service connection for headaches is again an entirely new claim). The Statement of the Case and Supplements thereto issued to the appellant do not reflect the correct characterization of the appellant's current head injury claim as an attempt to reopen a previously denied claim under 38 U.S.C.A. 5108 (West 1991), and this procedural and substantive deficiency must be remedied by the RO. Cf. Roy v. Brown, 5 Vet.App. 554 (1993). Accordingly, this appeal is hereby remanded to the RO for the following further action: 1. The RO must obtain either from the service department or from the appellant's Army National Guard unit (HHC 1/141st (M) Infantry, 2900 Camp Bullis Road, San Antonio, Texas 78252) official verification of his precise duty status for the following periods of time: May 23-June 10, 1989; June 17-July 1, 1989; February 23-25, 1990; March 2-4, 1990; June 2-16, 1990; August 10-25, 1990; and May 11- 18, 1991. This information should be incorporated into the claims file. 2. The RO should write to the appellant through his representative and request that he provide the names, addresses, and approximate dates of treatment for all health care providers who may have treated or evaluated him for any of the claimed disabilities since his discharge from active duty in April 1989. After obtaining any necessary authorization from the appellant, the RO should attempt to obtain copies of any relevant medical treatment records which are not already contained within the claims file, especially medical records from the VA Medical Centers in Dallas and Temple, Texas. 3. At the same time, the RO should invite the appellant to submit any additional (not duplicate material) medical evidence which would tend to show a relationship between the claimed disabilities and any events occurring in active service. Opinions on the etiology of the claimed disabilities by treating physicians or physicians familiar with all of the relevant medical records and history would be most helpful in this regard. 4. The RO should next schedule the appellant for a general medical examination and examinations by specialists in orthopedics, neurology, and urology (board certified, if available) in order to determine the current nature and identity of all current disabilities involving the low back, groin, and head. All necessary tests and laboratory studies should be performed as part of these examinations. Copies of the contents of the claims file must be made available to each examiner for review prior to examining the appellant. 5. The orthopedics examiner should also be requested to specifically confirm whether or not the appellant currently has arthritis of the lumbar spine and, if so, whether it is at least as likely as not that such arthritis of the lumbar spine: (a) originated during active duty service from April 1986 to April 1989; or (b) is traumatic in origin and related to one or more of the traumatic instances described by the appellant; or (c) is directly and proximately due to the affects of the service-connected musculoskeletal low back strain? 6. The neurological examiner should also be requested to provide a written opinion as to: (a) whether it is at least as likely as not that the appellant's herniated lumbosacral disc first documented in September 1991 directly stems from one or more of the injuries described by the appellant and, if so, from which such injury; and (b) whether it is at least as likely as not that the herniated lumbosacral disc was directly and proximately caused by the service-connected musculoskeletal low back strain? 7. Both the general medical examiner and the neurological examiner should be requested to provide a written opinion on the etiology of the appellant's headaches, if this is possible without resorting to speculation. 8. The urological examiner should be requested to specify which, if any, of the appellant's current symptoms are attributable to the service-connected residuals of left epididymitis and which are attributable to other causes. 9. The RO should next readjudicate all of the issues certified on appeal, including the secondary service connection aspects of the low back claims, and also giving proper weight and attention to the finality of the February 1990 rating action with respect to certain issues. If any of those determinations are unfavorable to the appellant, he and his representative should be informed in writing of the reasons and bases for those determinations and also informed of his appellate rights with respect to the newly-raised issues. If the benefits sought on appeal are not granted to the appellant's satisfaction, or if a timely Notice of Disagreement is received with respect to any other matter, including any additional issues raised by the appellant, a Supplemental Statement of the Case addressing all issues in appellate status should be prepared and furnished to the appellant and his representative. They should be provided an opportunity in which to respond. Thereafter, in accordance with proper appellate procedures, the case should be returned to the Board for further appellate review, if otherwise in order. All issues properly in appellate status should be returned to the Board at the same time. In taking this action, the Board implies no conclusion, either legal or factual, as to any final outcome warranted. No action is required of the appellant until he is otherwise notified by the RO. BRUCE E. HYMAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).