BVA9502226 DOCKET NO. 93-09 313 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.R. King, Associate Counsel INTRODUCTION The appellant served on active duty from May 1962 to August 1976. The appellant also had active duty for training (ACDUTRA) on various occasions while a member of the Pennsylvania Army National Guard during the period from July 1978 to February 1984. This appeal is before the Board of Veterans Appeals (Board) on appeal from an October 1991 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) which denied the appellant's claims of entitlement to service connection for diabetes mellitus and an evaluation in excess of 10 percent for residuals of a compression fracture of L2 with traumatic arthritis. The appellant was notified of the foregoing by letter in November 1991. Based on medical evidence obtained in an April 1992 VA examination, the RO by rating decision in September 1992 increased the evaluation of the appellant's service-connected low back condition from 10 to 20 percent. In his subsequent, timely-filed substantive appeal (VA Form 9), the appellant made no mention or argument regarding the matter of the then recently-increased evaluation of his service-connected low back disability, and specified only that he wished to be granted service connection for his diabetes. Later in January 1993 (outside the time frame for filing a timely substantive appeal), the appellant's representative listed the issue of an increased rating for the service-connected low back disability on a VA Form 1-646. Pursuant to 38 U.S.C.A.§ 7105 (West 1991) and 38 C.F.R.§§ 20.202, 20.302 (1993), this matter is not deemed to be currently in appellate status, as the Board lacks jurisdiction thereof. Additionally, while the appellant filed an application for VA compensation or pension in May 1983 (VA Form 21-526), the RO deferred adjudication with respect to this matter by rating decisions in June 1984 and April 1985. This result flowed as a consequence of contradictory documentation of record, reflecting that the appellant was employed at various times over the years while claiming nonservice-connected pension. As this claim has apparently not been finally adjudicated, it remains a pending claim (38 C.F.R.§ 3.160), and is hereby referred back to the RO for appropriate consideration. While the appellant was scheduled for a personal hearing before a member of a traveling section of the Board in April 1993, he failed to appear on the date in question and his records were thereupon transferred to the Board for appellate disposition. REMAND A Report of Separation and Record of Service reflects that the appellant enlisted in the Pennsylvania Army National Guard (PAANG) in July 1978 and was separated therefrom in February 1984. However, it is unclear from a review of the claims folder whether this period of service constitutes any active duty or the precise dates of any ACDUTRA. As the exact dates and nature of service are highly relevant to the adjudication of the appellant's claim of service connection for diabetes mellitus (38 U.S.C.A.§§ 101(24), 106, 1110, 1131), verification concerning the appellant's actual dates of active service and ACDUTRA during the period from 1978 through 1984 must be secured through official channels. In this regard, the record indicates that the appellant's records relative to his service in the PAANG were available from The Adjutant General of Pennsylvania, c/o Department of Military Affairs, ATTN: MP-E, Annville, Pennsylvannia 17003. Private medical records, including treatment records from the Gettysburg Medical Center, dated in January 1983, reflect that the appellant had been incarcerated in the "York Jail" for "the past several months." The correctional facility should be contacted and requested to provide any pertinent medical records they have on file. A review of the record reveals that the service medical records for the appellant's 14 years of active duty are rather sparse, either owing to the appellant's good health in service or because they may be incomplete. Inasmuch as the appellant has claimed that the onset of his diabetes mellitus is coincident with both his active duty and his ACDUTRA in the PAANG, an additional search by the service department for all available service medical records would be highly useful in connection with the adjudication this claim. In view of the development necessary with respect to this claim, it is REMANDED to the RO for the following action: 1. The appellant should be requested to provide a comprehensive statement as to the approximate dates and locations of any medical treatment he received for his diabetes in service. The RO should provide such information to the National Personnel Records Center in St. Louis, Missouri, in order that another search may be made for any additional service medial records. 2. The Adjutant General of Pennsylvania, in Annville, Pennsylvania, should be contacted by the RO in order to verify the exact dates of the appellant's ACDUTRA or active duty from 1978 through 1984. 3. After securing from the appellant the necessary release, the RO should obtain from the York County Jail copies of any available private medical records of treatment furnished him for diabetes while he was incarcerated there in 1983, 1982 or earlier. If an official of the York County Jail refers to treatment of the appellant for diabetes at a time and place for which records are not already available, copies of such records should be obtained by the RO for inclusion in the record. After the development requested above has been completed, to the extent possible, the RO should again review the record. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate review. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. J.F. GOUGH 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).