Citation Nr: 0002030 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 96-45 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a skin disorder. 3. Entitlement to service connection for a hernia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jonathan B. Kramer, Associate Counsel INTRODUCTION The veteran had active duty service from June 1964 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the benefits sought on appeal. The veteran appeared and testified before the undersigned at an August 1999 Board hearing held in Washington, D.C. The Board also observes that the August 1999 Board hearing transcript includes testimony reflecting that the veteran wishes to file a claim for service connection for post- traumatic stress disorder. This issue is hereby referred to the RO for appropriate action. REMAND Upon preliminary review of the claims file, the Board observes that the veteran's variously dated written statements and August 1999 RO hearing testimony, reflect that the veteran's service medical records (SMRs) are incomplete, and that certain VA medical records have not been associated with the claims file. Concerning the issue of entitlement to service connection for a back disorder, the veteran specifically stated that he first injured his back in jump school at Ft. Benning, GA, in August or September 1964. Thereafter, the veteran testified that he visited the dispensary while he was stationed in Korea for further treatment relating to his back. He also stated that he was treated in 1968 for a back injury during a three-day stay at a field hospital in Chu Lai, Vietnam, and that he received outpatient treatment thereafter in Vietnam. With regard to the issue of entitlement to a skin disorder, the veteran stated he was treated for a skin disorder in Vietnam during the same time that he injured his back in 1968, and that he was treated by a private physician after service, Dr. Harold Franklin, now deceased. Turning to the issue of entitlement to service connection for a hernia, the veteran stated that he was diagnosed with a hernia during a periodic physical examination at Myrtle Beach Air Force Base, associated with his duty in the Army Reserves. Moreover, the veteran testified that he received a hernia repair operation at the Cleveland VA hospital approximately three years prior to the August 1999 hearing. The Board observes that the RO has not pursued alternative sources to the National Personnel Records Center (NPRC) in order to find the missing SMRs, nor have any VA medical records relevant to the veteran's hernia operation been obtained. Given the veteran's specific contentions, the Board believes further attempts to obtain pertinent medical records are appropriate. The VA is deemed to have constructive knowledge of these records. As such, they are considered to be evidence which is of record at the time any decision is made, and should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Preliminary action to obtain all such pertinent SMRs and VA records is therefore necessary before the Board may properly proceed with its appellate review. The Board also takes this opportunity to inform the veteran that before a review of the merits of a claim can be undertaken, the veteran must first submit a well-grounded claim. See 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Appeals for Veterans Claims (Court) has further indicated that in order for a service connection claim to be well-grounded, there must be competent evidence: i) of current disability (a medical diagnosis); ii) of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and; iii) of a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The Board emphasizes, however, that the doctrine of reasonable doubt does not ease the veteran's initial burden of submitting a well-grounded claim. See 38 U.S.C.A. § 5107(b) (West 1991). Alternatively, the Court has recently indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, 10 Vet. App. at 498. The Board views this discussion as sufficient to inform the veteran of the elements of a well-grounded service connection claim. See 38 U.S.C.A. § 5103(a) (West 1991); Robinette v. Brown, 8 Vet. App. 69 (1995). For the reasons discussed above, this case is hereby REMANDED for the following actions: 1. The RO should obtain and associate with the claims file any and all records pertaining to the hernia operation that the veteran underwent at the VA medical facility in Cleveland, Ohio, as referred to by the veteran during his August 1999 Board hearing testimony. 2. The RO should conduct a search for additional SMRs by contacting alternative sources to the NPRC, such as the unit(s) that the veteran served with in Korea and Vietnam, or other entity that may have records of the Field Hospital in Chu Lai, Vietnam; and the Myrtle Beach Air Force Base, or other entity that may have the veteran's Army Reserve medical records. 3. The RO should also attempt to obtain any of the veteran's medical records concerning a skin disorder from the appropriate repository for Dr. Franklin's records, should they still be in existence. 4. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the appellant and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). JOHN R. PAGANO Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).