Citation Nr: 0004062 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 96-44 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for arthritis of the right hand. 2. Entitlement to service connection for a chest disorder. 3. Entitlement to service connection for the residuals of frontal facial injury. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. Dean INTRODUCTION The appellant has verified active military service from October 1966 to November 1969. This matter comes to the Board of Veterans' Appeals (Board) from rating determinations by the Houston Regional Office (RO) of the Department of Veterans Affairs (VA). The case was last before the Board in July 1997, when it was remanded to the RO for further development of the evidence. In the July 1997 remand, the Board erroneously listed the issue of entitlement to service connection for bilateral hearing loss among the issues in appellate status at that time. In fact, the appellant very deliberately did not include that issue in his substantive appeal (VA Form 9, dated in September 1996), and the current record does not reflect any other document which would qualify as a timely substantive appeal on the issue of service connection for hearing loss. A timely substantive appeal is as essential as a timely notice of disagreement to confer appellate jurisdiction on the Board. See 38 C.F.R. § 20.200; Roy v. Brown, 5 Vet. App. 554, 555 (1993). Therefore, the Board has no jurisdiction over such issue at this time. REMAND As mentioned above, the appellant has verified active service from October 1966 to November 1969, when he served on active duty in the U.S. Marine Corps. The evidence also indicates additional service in the Marine Corps Reserve from November 1969 to August 1972, and again from June 15, 1979 to June 14, 1980. The appellant has always referred to the latter period of service as "Active Reserve" service. (See, e.g., letter by appellant, dated May 28, 1998.) Also, the record reflects what appear to be photocopies of two "Honorable Discharge" certificates issued by the U.S. Marine Corps (not the reserve component) in August 1972 and June 1980. On the other hand, a copy of the appellant's enlistment contract dated in June 1979 indicates that he enlisted at that time for one year of "Inactive Duty" in the Marine Corps Reserve. The present claim was also initially limited to the verified period of active service in the late 1960s. See VA Form 21-526, Veteran's application for Compensation or Pension, dated in September 1994. In order to properly review this appeal, it is imperative for the Board to be aware of the appellant's correct service dates, i.e., the dates of active military service as defined at 38 C.F.R. § 3.6(a). Most periods of active duty for training or inactive duty training in the reserves would not be countable service for VA purposes. See 38 C.F.R. §§ 3.1, 3.6. In an attempt to clarify the situation, the Board directed the RO in the July 1997 remand to obtain verification of all periods of military service. Accordingly, a request by the RO was addressed to the service department seeking this verification in February 1998. The present record does not reflect any response to the request by the service department, and the RO's action in returning this appeal to the Board without this information is in violation of Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand order, and it imposes on VA a concomitant duty to ensure compliance with the terms of the remand.) Several attempts by the RO to obtain missing service medical records (if any) pertaining to the 1979-80 period of service have been unsuccessful, but no attempt has been made to locate corresponding medical records (if any) dating from the 1969-72 period of service in the Marine Corps Reserve. Furthermore, although the appellant has been kept informed of the attempts to locate missing medical records and has indicated that he has no further relevant information or records in his possession, the Board is not sure that the procedural requirements set out in Dixon v. Derwinski, 3 Vet. App. 261, 263-64 (1992) have been satisfied in this case. While the Board very much regrets the additional amount of time which must be spent before a final decision can be reached in this appeal, it is in the appellant's interest for this appeal to be remanded once again for the following action: 1. The RO should again request the service department to verify all periods of active military service by the appellant. In particular, the service department should characterize the appellant's status while serving in the Marine Corps Reserve from November 1969 to August 1972, and again from June 15, 1979 to June 14, 1980. 2. At the same time the RO should once again attempt to locate and obtain any service medical records pertaining to the aforementioned periods of service in the Marine Corps Reserve. If these records still cannot be obtained, then the RO must fully satisfy the procedural requirements set forth in Dixon v. Derwinski, 3 Vet. App. 261, 263-64 (1992). 3. The appellant should also be invited to submit additional medical evidence in support of the three claims listed on the cover page, such as evidence of current medical treatments for the claimed disabilities, etc. The RO should specifically advise him of the type of additional evidence which he should submit in order to well ground his claims. See 38 U.S.C.A. § 5103(a) and Robinette v. Brown, 8 Vet. App. 69 (1995). 4. If appropriate, the RO should then readjudicate the claims currently in appellate status based upon a review of all of the relevant evidence. If the benefits sought are not granted, the appellant and his representative should be furnished an appropriate supplemental statement of the case and provided an opportunity to respond. In accordance with proper appellate procedures, the case should then be returned to the Board for further appellate consideration. The appellant need take no further action until he is so informed, but he may furnish additional evidence and/or argument on the remanded matters while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or the U.S. Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the RO to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. J. F. GOUGH Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the U.S. 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).