12-18 471
12-18 471
Board of Vet. App.Jun 28, 2017Background
- Veteran served on active duty from July 1965 to December 1987 and appealed an August 2010 RO rating decision denying service connection for headaches and a back disorder (claimed secondary to a service‑connected right foot disorder).
- Veteran filed a substantive appeal in June 2012 and requested a Board hearing but failed to appear at the scheduled March 2016 hearing; the Board deemed the hearing request withdrawn.
- Prior Board remand ordered VA examinations, but a November 2016 VA exam was canceled and not rescheduled despite the Veteran requesting a closer location and explaining scheduling conflicts.
- Veteran reported in December 2016 that he received in‑service treatment for headaches and back at multiple naval facilities and MacDill AFB in the 1980s; those treatment records are not in the file and no record request appears to have been completed.
- The Board concluded additional development is required (obtain missing service treatment records and new VA examinations with rationale) and therefore remanded the claims for further development and readjudication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for headaches | Headaches began/treated in service; VA should concede nexus | RO denied service connection based on current record lacking nexus | Remanded for new VA exam and attempts to obtain in‑service treatment records; development required |
| Service connection for back disorder (direct) | Back injury occurred in service (Vietnam); treated in service | RO denied because records do not establish in‑service injury or nexus | Remanded for new VA exam and records development |
| Secondary service connection for back (secondary to right foot) | Right foot disorder worsened or caused back condition | RO found insufficient evidence to establish causation/ aggravation | Remanded for examiner opinion on causation and aggravation with rationale |
| Duty to obtain and consider in‑service treatment records | Veteran reported multiple naval/MacDill treatments that must be obtained | RO had not obtained/attempted all identified records | Remanded: RO must request Veteran identify treatment details and obtain naval and MacDill records; notify if unavailable |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (1998) (Board remand imposes duty on VA to comply with remand instructions)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (claimant may submit additional evidence/argument after remand)