09-00 763

• Court: Board of Veterans' Appeals
• Decided: February 7, 2011
• Docket: 09-00 763
• Status: Unpublished

Opinion

Citation Nr: 1104834 Decision Date: 02/07/11 Archive Date: 02/14/11

DOCKET NO. 09-00 763 ) DATE ) )

On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington

THE ISSUES

1. Entitlement to service connection for bilateral hand tremors.

2. Entitlement to service connection for a hiatal hernia or gastroesophageal reflux disease (GERD).

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of the United States

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

K. Osegueda, Associate Counsel

INTRODUCTION

The Veteran served on active duty from October 1963 to October 1966 with service in the Republic of Vietnam from May 1964 to May 1965.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied service connection for bilateral hand tremors and hiatal hernia or GERD.

In August 2010, the Veteran provided testimony at a Travel Board hearing held before the undersigned Veterans Law Judge at the RO. A transcript of the hearing has been associated with the claims folder.

The issues of (1) entitlement to service connection for diabetes mellitus, type 2, to include as secondary to herbicide exposure; (2) entitlement to service connection for peripheral neuropathy of the upper extremities; and (3) whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for peripheral neuropathy of the lower extremities (bilateral feet and legs), have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.

REMAND

As an initial matter, the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), are applicable to this appeal. The RO provided the Veteran with VCAA notice as to all elements of the claims in correspondence dated in April 2007 and July 2007. In the correspondence, the RO notified him of how VA determines the disability rating and effective dated when a disability is found to be connected to service. See Dingess v. Nicholson, 19 Vet. App. 473 (2006).

During the August 2010 Travel Board hearing, the Veteran indicated that he was in receipt of Social Security Administration (SSA) disability benefits, based on the severity of his non-service connected back and osteoporosis disabilities. Here, the Board finds that the SSA records are not relevant to these claims, because he is receiving SSA disability benefits for his back disabilities and not for bilateral hand tremors or a hiatal hernia or GERD. See Golz v. Shinseki, 590 F.3d 1317 (2010), citing McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008); Murinscak v. Derwinski, 2 Vet. App. 363, 370 (1992). Accordingly, there is no prejudice to the Veteran in not obtaining such records. There has been no argument that the SSA records are pertinent to the claims being adjudicated in this decision as to require that additional adjudication resources be expended to obtain these records. See 38 U.S.C.A. § 5103A(b),(c); Baker v. West, 11 Vet. App. 163, 169 (1998); Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992).

On August 31, 2010, VA published the final regulation establishing a presumption of service connection for Parkinson's disease. A review of the claims folder reflects that as recently as March 2010, VA outpatient treatment records have suggested the possibility that the Veteran's essential tremors may actually be Parkinson's disease. Thus, further development is required.

Subsequent to the March 2010 supplemental statement of the case (SSOC) regarding the service connection claims for tremors and a hiatal hernia or GERD, the Veteran submitted a statement from his brother dated June 2010, and statements concerning his tremors and GERD in August 2010 and copies of internet articles about GERD. Since an SSOC has not been issued that addresses this additional evidence, the issues must be remanded for readjudication and the issuance of an SSOC that considers the additional medical evidence received since June 2010.

Accordingly, the case is REMANDED for the following actions:

1. The RO should contact the Veteran and obtain the names and addresses of all medical care providers, VA and non-VA that treated him for bilateral hand tremors and a hiatal hernia or GERD since March 2010. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review.

2. The Veteran should be afforded a VA neurology examination to evaluate his essential tremors. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the record, examination of the Veteran (with appropriate testing performed), and applying sound medical principles, the examiner is requested to provide an opinion as to whether the Veteran has Parkinson's disease. If he does not, the examiner is requested to provide an opinion as to the etiology of the essential tremors. If the examiner opines that the question cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so (why is the causation unknowable?), must be provided. A complete and sustainable rationale is to be provided for any opinion rendered.

3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim.

4. After ensuring that the development is complete, re-adjudicate the claims for service connection for bilateral hand tremors and service connection for a hiatal hernia or GERD. If the claims remain denied, issue a SSOC before returning the claims to the Board, if otherwise in order.

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. 2010).

_________________________________________________ RENÉE M. PELLETIER 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) (2010).