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Oliver B. Mitchell III, Appellant, Service No.

Oliver B. Mitchell III


PO Box 2705
Long Beach, California
90801
November 30, 2014

Board of Veterans Appeals


Department of Veterans Affairs
Washington, D.C. 20420
Department of Veterans Affairs
Regional Office
Los Angeles, California 90024
Department of Veterans Affairs
Regional Office
Montgomery, Alabama 36109
In the appeal of:
Oliver B. Mitchell III
Service No. 550613512
The veteran had active service from January 1991 to January 2002.
Pursuant to 38 C.F.R. 20.900 (c) (2009) l, Oliver B. Mitchell III, am requesting
advancement of the claims for the following:
1. Severe financial hardship.
2. Homelessness and destitution.
3. Medical Illness
In response to your decision letter (Board of Veterans Appeals, Regional Office (RO)
Montgomery, Alabama and Regional Office (RO) Los Angeles, California) the
following information is provided in accordance to Title 38.
THE ISSUES
1. Entitlement to service connection for an acquired psychiatric disorder, to
include depression.
2. Entitlement to service connection for migraine headaches, to include as
secondary to hypertension.
3. Entitlement to service connection for right testicular disorder.
4. Whether new and material evidence has been received to reopen a claim for
entitlement to service connection for hypertension.
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Oliver B. Mitchell III, Appellant, Service No.


5. Whether new and material evidence has been received to reopen a claim for
entitlement to service connection for asthma.
6. Location of service medical records.
7. VA Virtual paperless claims processing system.
INTRODUCTION
On November 10, 2008 the veteran submitted a document titled New and Material
Evidence for claims listed as Asthma, Hypertension/High Blood Pressure, Testicular
Pain, Blood Hematoma (claimed as Hemotora), severe Migraine headaches and
depression.
On October 31, 2009 the veteran submitted a document titled Appeal to Notice
dated November 18, 2008. In that letter the veteran states evidence provided is
in addition to the evidence provided during earlier claim filings. On page 7 of said
notice the veteran withdrew his claim for depression citing withdrawn pending
further evaluation by a medical officer.
In a letter dated July 2, 2014, Board of Veterans Appeals, Page 1, Issues, No. 1, the
BVA states Entitlement to service connection for an acquired psychiatric disorder,
to include depression.
On page 2, 2nd Paragraph, Lines 1-10, the BVA states The Board notes that the
veterans November 2009 Notice of Disagreement (NOD) only addressed four of five
issues presently on appeal. He indicated that he was withdrawing his claim for
service connection for depression. However, the RO issued an August 2012
Statement of the Case (SOC) that included the issue of entitlement to service
connection for depression, and the veteran perfected a timely appeal in an October
2012 VA Form 9. The claim for service connection for depression was certified to
the Board. As such the Board finds that the veteran was led to believe that the
issue was on appeal and will therefore take jurisdiction of the claim.
On Page 3, 3rd Paragraph, Lines 1-4, the BVA states The issues of entitlement to
service connection for an acquired psychiatric disorder, migraines and right
testicular disorder, as well as the reopened claim for service connection for
hypertension are addressed in the REMAND portion of the decision below and are
REMANDED to the Agency of Original Jurisdiction.
On Page 11, 2nd Paragraph, Lines 1-7, the BVA states Regarding the claimed
psychiatric disorder, the Board notes that the veteran did report having nervous
trouble in December 2001, and the examiner noted that he was anxious on
occasion. The veteran was diagnosed with depression in November 2005.
Therefore, the Board finds that a VA examination and medical opinion are necessary
to determine the nature and etiology of any psychiatric disorder that may be
present.

Oliver B. Mitchell III, Appellant, Service No.


On Page 14-15, Item 4, the BVA states The veteran should be afforded a VA
examination to determine the nature and etiology of any acquired psychiatric
disorder that may be present. Any and all studies, tests, and evaluations deemed
necessary by the examiner should be performed.
On July 7, 2014 the Board states The veteran perfected a timely appeal in an
October 2012 VA Form 9. VA Form 9 dated October 6, 2012, box 10, states After
having read the SOC I disagree with the decision as the VA didnt properly apply the
rules for Reasonable Doubt and principles relating to service connection.
Additionally, medical records/evidence past 2008 werent considered.
The veteran asserts his response was a general statement to the findings within the
SOC. The veteran contends that his prior request to withdraw his claims for
depression stands.
The RO, Montgomery, Alabama provided the veteran with a SOC dated August 23,
2012. On Page 15, Item 1, the RO stated A review of your service treatment
records does not show treatment for, or a diagnosis of depression. VA treatment
records show a diagnosis of depression in November 2005 related to job stress.
There has been no additional evidence received or reviewed that would warrant
reconsideration of this issue. Therefore, service connection for depression remains
denied.
To date the veteran has not obtained any new or material evidence that would
warrant reconsideration of service connection for depression. As such the veteran
asserts that his prior withdrawal for claimed depression dated October 31, 2009
stands and the Board and ROs desire to process that claim be void Ab initio or null
and void.
On November 13, 2014 the RO, Los Angeles provided the veteran with a letter titled
Notice of our Decision. In that letter the RO stated we determined that the
following conditions were not related to your military service, so service connection
is denied and couldnt be granted; Bronchietasis, Cystic Fibrosis, Anemia primary.
We have enclosed a copy of our rating decision for your review.
Attached to that letter the RO provided the veteran with a rating decision dated July
7, 2014 from the RO, Montgomery, Alabama. In that notice the RO stated Service
connection for Bronchietasis, Cystic Fibrosis and Anemia are denied. On Page 2-3,
the RO contends Efforts to obtain your service medical records from all potential
services were unsuccessful. If those records are located at a later date, this
decision will be reconsidered.
The veteran asserts that the RO Failed to check all potential sources to include the
VAs virtual paperless claims processing system, the BVA and the RO, Montgomery,
Alabama.

Oliver B. Mitchell III, Appellant, Service No.


On August 23, 2012 the RO, Montgomery, Alabama certified that it; itself had
reviewed the veterans service treatment records prior to its decision.
On July 2, 2014 the Board certified that it, itself had reviewed the veterans service
treatment records, post service medical records and lay claims prior to remand.
The veteran asserts, did the RO, Los Angeles properly conduct a search for the
veterans service records? Have the veterans service medical records been
misplaced since the Boards remand dated July 2, 2014? Did the RO, Los Angeles
check the VAs virtual claims processing system for digital copies of the service
medical records?
Additionally, the decision letter dated July 7, 2014 states Service connection may
be granted for a disability which began in military service or was caused by some
event or experience in service. Service connection is denied since this condition
neither occurred in nor was caused by service. We did not find a link between your
medical condition and military service.
Per the Code of Federal Regulations, Title 38, section 3.309 (a), effective 11/7/02
disease subject to presumptive service connection states Chronic diseases. The
following diseases shall be granted service connection although not otherwise as
incurred in or aggravated by service if manifested to a compensable degree within
the applicable time limits under 3.307 following service in a period or war or
following peacetime service on or after 1/1/47.
Accordingly, Anemia primary, Bronchietasis and Hypertension are listed as chronic
diseases under 3.309 (a) and 3.307. The law clearly states These diseases shall
be GRANTED service connection
The veteran contends that the RO, Los Angeles Failed to properly apply the law
under Title 38, Section 3.309(a) and based its decision on their lack to properly
obtain the veterans service treatment records.
As a result of the RO, Los Angeles lack of jurisprudence the veteran is penalized by
having to file an appeal to a faulty decision order.
The veteran asserts that all claims for depression, to include an acquired psychiatric
disorder are hereby WITHDRAWN. The Board and all ROs with jurisdiction are
hereby ORDERED to withdraw all and any claims for depression.
Pursuant to 38 C.F.R. the veteran respectfully request that these claims are afforded
expeditious treatment.
If you should have any additional questions and/or comments please respond to the
above address or directly at 562 826 9088.
Respectfully,
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Oliver B. Mitchell III, Appellant, Service No.

[Signed]
Oliver B. Mitchell III