BVA9503537 DOCKET NO. 93-05 372 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of left shoulder injury. 2. Entitlement to service connection for residuals of head injury to include laceration over the left eye and bilateral cataracts. 3. Entitlement to service connection for residuals of neck injury. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran had active military service from September 1975 to March 1978. He received a Chapter 13 discharge. A Department of Veterans Affairs (VA) Waco, Texas Regional Office (RO) rating action in August 1978 denied service connection for residuals of a left shoulder injury. The veteran did not appeal and that decision became final. The RO determined that there was no evidence during or since service of a left shoulder injury. That determination was equivalent to finding that the claim was not well grounded. A VA rating action in November 1990, in addition to other determinations, denied service connection for residuals of a head injury. The veteran was notified of this determination in December 1990. The veteran had 1 year from the date of mailing of that notice to file a notice of disagreement. 38 U.S.C.A. § 7105 (West 1991). Service connection for residuals of a neck injury was denied by rating action in May 1991. The veteran, in a letter submitted in August 1991, referred to the May 1991 rating action and pointed out that he was seeking service connection for head and neck injuries. In September 1991 the veteran submitted additional evidence in support of his claim for head and neck injuries. A September 1991 rating action indicated that the veteran had not submitted new and material evidence in support of his claim for service connection for residuals of head and neck injuries. A December 1991 rating action echoed this finding. However, in regard to residuals of head and neck injuries, the June 1992 statement of the case did not address finality of prior decisions or the necessity of submitting new and material evidence to reopen a claim. In the Board's opinion, the August 1991 letter from the veteran could be liberally construed as a notice of disagreement, within the 1 year time limit, from the notice of denial of service connection for residuals of a head injury. Accordingly, new and material evidence is not required for the head and neck injury claims. In the course of this appeal the veteran has raised the issues of entitlement to service connection for laceration above the left eye and bilateral cataracts, as the residuals of head injury in service. Service connection for the laceration and cataracts has been separately adjudicated by the RO. The issue, as shown on the preceding page, more accurately reflects the veteran's claim for residuals of head injury. The veteran has also referred to a laceration of the lip and a broken tooth associated with the heard injury in service. These specific claimed residuals have not been adjudicated by the RO. REMAND The case was docketed at the Board in March 1993. The veteran, in a letter to the VA in May 1993, reported that there was information concerning his appeal at the Pentagon, and he provided the address of that office. The Board, in September 1993, received records reflecting upon the veteran's reported injuries in service. Under 38 C.F.R. § 20.1304(b), any evidence submitted to the Board over 90 days following notification to the veteran of the transfer of records from the RO to the Board, will not be accepted, except when the appellant demonstrates on motion that there was good cause for the delay. The veteran did submit such a motion along with the documents he wished to have considered, and the Board finds that there was good cause for the delay. The evidence was not accompanied by a waiver of the procedural right to have the evidence considered by the RO. Therefore, the case must be returned to the RO for review of the additional evidence and preparation of a Supplemental Statement of the Case. 38 C.F.R. § 20.1304 (c) (1994). Also, additional evidence should be obtained. In view of the above, this case is remanded for action as follows: 1. An attempt should be made to obtain any line of duty investigation or line of duty determination reports in regard to injuries reportedly sustained by the veteran during an altercation in January 1978. (See evidence received at the Board from the Department of the Army.) Also, any records associated with the veteran's Chapter 13 discharge. 2. The RO should try to obtain service medical records of claimed treatment at the Fort Campbell Army Hospital in December 1977 for a head injury and at the Camp Drum Army Field Hospital in January 1978 for head and face trauma. 3. The RO should ensure that they have all VA records of treatment for the veteran since service, including domiciliary records, and all records of treatment for the veteran after February 1992. 4. The RO should review the entire file and then determine whether any of the claims are well grounded -- i.e., plausible and supported by evidence tending to show that the veteran has current disability related to service. If any claims are found not to be well grounded, the RO should advise the veteran of the type of evidence needed to support the claim and give him an opportunity to submit it. 5. If any claims are found by the RO to be well grounded, the RO should ask the veteran to provide a list of any medical treatment for his disabilities since service. He should also indicate any post-service head or neck injuries. Using information provided by the veteran, and with his consent, the RO should attempt to secure copies of all pertinent records not already on file. 6. If any claim is well-grounded, the veteran should be queried as to whether he has applied for or is in receipt of disability benefits from any agency or organization. If so, the RO, with the help of the veteran, should attempt to obtain any medical records associated therewith. 7. If the RO eventually finds that the claims are well-grounded, the veteran should be afforded special VA evaluations to determine the nature and etiology of any current residuals of head trauma, eye disorders, left shoulder disability, or head/neck disorders and cataracts or residuals thereof. On examination, the veteran should be permitted to give a history of pertinent events in service and his post-service medical problems. The examiner should review the claims folder, including the service medical records, and a copy of this remand. The examiners, respectively, should be asked whether it is more likely, less likely, or equally likely as not that any head or neck disorder, bilateral cateracts, or left shoulder disability is of service origin or causally related to any incidents of service. The rationale for the opinions should be stated. The claims folder and a separate copy of this remand should be made available to the examiner(s) prior to the examination(s). Thereafter, the case should be readjudicated. If any benefit sought remains denied, a supplemental statement of the case should be issued, with opportunity to respond. The case then should be returned to the Board for further appellate consideration. JANE E. SHARP 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).