Citation Nr: 0007869 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-14 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Solomon J. Gully, IV, Associate Counsel REMAND The record appears to indicate that the veteran had active service from May 1959 to 1 November 1959. His duty status, if any, after 1 November 1959 remains subject to confirmation. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from a February 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which declined to reopen the claim for service connection for asthma. The veteran filed a claim of entitlement to service connection for asthma in April 1974. In July 1974 correspondence, the RO informed the veteran that his claim had been "reviewed," and advised him that he could submit additional evidence in support of his claim. There was no formal rating action denying the veteran's claim, and he was not advised of his appellate rights. The RO subsequently determined that its July 1974 "decision" became final, and found that the veteran failed to submit new and material evidence to reopen his claim for service connection for asthma in November 1974, August 1975, October 1975, November 1975, and April 1980. In May 1997 correspondence, the veteran again sought service connection for asthma. The RO declined to reopen the claim in February 1998, on the basis that new and material evidence had not been submitted. The veteran filed a notice of disagreement (NOD) with this decision in March 1998, and submitted a substantive appeal (Form 9) in September 1998, perfecting his appeal. A June 1999 hearing officer's decision properly determined that the July 1974 correspondence from the RO did not constitute a final decision, and denied service connection for asthma following a de novo review of the claim. The Board notes that since there was no final rating decision in July 1974, new and material evidence to reopen the claim is not necessary. Entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during "active military, naval, or air service." 38 U.S.C.A. § 1131. Service connection may also be granted for any disorder diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24). The term "active duty for training" means "full-time duty in the Armed Forces performed by the Reserves for training purposes." 38 U.S.C.A. § 101(22)(A). In addition, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training or injury incurred in or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 1991). The veteran's service medical records (SMRs) were obtained by the RO in February 1961, in conjunction with an unrelated claim for service connection. Service medical records are negative for diagnosis or treatment of asthma. On separation examination in September 1959, the veteran checked the boxes on the Report of Medical History form indicating that he experienced shortness of breath, but had not experienced asthma. A clinical evaluation of the lungs was normal, and the report is negative for a diagnosis of asthma. During the October 1998 personal hearing, the veteran testified that he first experienced a "real shortness of breath" approximately one month prior to his separation from service. Transcript (T.) at 2. He explained that he went to sick call, and was advised by the doctor to "report to the officer in charge of the reserves when you get out." T. at 2 and 8-9. The veteran stated that he reported to his reserve unit at Fort Rosecrans in October or November 1959, and was sent to the Naval Training Center for a physical examination. T. at 2-3 and 9-10. He reported that asthma was diagnosed at that time. T. at 2-3 and 10. The veteran testified that he was discharged from reserve duty in March 1960, and maintained that asthma was noted on his DD Form 214. T. at 2-3 and 10-11. The service department has not verified the veteran's claimed dates of service after 1 November 1959. Efforts to obtain a Department of Defense (DD) Form 214 (Certificate of Release or Discharge from Active Duty) have not been successful. When the claimant filed his original application for compensation benefits in 1961, he did not mention asthma or any breathing disorder. He reported active service dates from May to November 1959, but wrote "N/A" in the portion of the form that requested him to specify any inactive or active duty for training periods after 1 November 1959. He was also requested to identify medical providers who treated him for "any sickness, disease or injury before, during or after service." He listed only one physician, Dr. Meador, who reportedly treated him for disorders other than asthma or a breathing disorder. The record contains a medical certificate from Dr. J. H. Meador, who reported treating the veteran in 1957, 1958 and 1961 for disorders not including asthma or a breathing disability. While the Board is not prepared to rule at this time that the information on the original application completely precludes the prospect that asthma or a breathing disorder were subject to treatment by service department medical providers after 1 November 1959, the fact is that the veteran, at a time proximate to service, made no claim of any active or inactive duty training status after 1 November 1959 or of treatment for the claimed disabilities when he was requested to identify treatment for any disorder post service. When the veteran filed his claim for compensation benefits in 1974 for disorders including asthma, he listed his service dates as August 1956 to April 1961. His claimed in service treatment for asthma was in 1960 at Ft. Ord. He made no mention of any other treatment by a service department medical provider, although he was requested to do so. He also reported treatment for asthma by "Dr. Meador" of Fairmont University, San Diego in November 1960 and by the Kaiser Foundation in November 1960 to date. There is an obvious conflict between the veteran's report of treatment by Dr. Meador for asthma in 1960, and the veteran's original report of treatment by Dr. Meador as well as Dr. Meador's certificate covering the treatment he rendered between 1957 and 1961. In a statement received in February 1975, the veteran reported that he received a physical examination at the request of the 977th Terminal Service Command "a week or two" after his release from active service. The RO sent a copy of this correspondence to the NPRC in March 1975. The NPRC replied that the service medical records had been already supplied. In March 1975 correspondence to a Senator, the veteran reported he was examined by the VA after service in "1960." In May 1975 correspondence, he claimed treatment for asthma at Kaiser in 1963. In August 1975, the veteran submitted a statement he prepared, signed by four individuals, to the collective effect that they recalled he was using Primatene Mist or something similar in 1960 for asthma. Given the significance of the dates of the veteran's active duty for training in 1959, the appeal must be remanded, in part, to verify his periods of active duty for training. Acceptable evidence of service consists of either a certification by the service department or of certain, specified official documents issued by the service department. 38 C.F.R. § 3.203(a). A service department determination as to an individual's service shall be binding on VA unless a reasonable basis exists for questioning it. Manibog v. Brown, 8 Vet. App. 465 (1996); Duro v. Derwinski, 2 Vet. App. 530 (1992). On remand, the RO should contact NPRC and the service department (i.e., the Department of the Army), and request verification of the specific dates of the veteran's periods of active duty for training, if any. Lastly, the Board notes that Dixon v. Derwinski, 3 Vet. App. 261 (1992), mandates that when a denial of a claim for benefits rests, in part, on the government's inability to produce records which were once in its custody, an explanation is due the veteran of how service records are maintained, why any search undertaken constituted a reasonably exhaustive search, and why further efforts were not justified. Id. at 264. In this instance, if the service department is unable to produce records of alleged treatment after November 1959, the mandates of Dixon must be followed to explain the adequacy of the attempt to locate such records. To ensure that VA has met its duty to assist the veteran in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED for the following development: 1. The veteran may submit additional evidence and argument in support of his claim. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should contact NPRC and the service department, and request verification of the veteran's active duty and verification of the specific dates of the veteran's claimed periods of active duty for training after November 1, 1959. The RO should specifically request a copy of the veteran's DD Form 214 and all other service department records documenting periods of active duty or inactive duty for training. Copies of all communication between the RO and NPRC or the service department, and reports of contact concerning any relevant telephone conversations, must be associated with the claims file. All relevant documents received should be associated with the claims file. 3. Thereafter, the RO should review any records provided by NPRC or the service department, and determine whether a further search for medical records is appropriate. If so, the RO should attempt to obtain any available additional service medical records for such verified periods of active duty, inactive duty, or active duty for training. In order to accomplish this objective, the RO should contact all necessary custodians of these records, to include the National Personnel Records Center, the U.S. Army Reserve Personnel Center, and, if appropriate, any reserve units identified by the veteran. 4. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence, and the RO should adjudicate the veteran's claim for service connection for asthma on a de novo basis. If the determination remains adverse to him, the veteran should be provided a supplemental statement of the case that contains all relevant law and regulations. If the RO is unable to obtain records of the alleged treatment at the Naval Training Center, the RO should provide an explanation as to how service records are maintained, why any search undertaken constituted a reasonably exhaustive search, and why further efforts were not justified should also be provided. See Dixon. The veteran should then be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The case should then be returned to the Board for further review. No action is required of the veteran until he is notified. The purpose of this REMAND is to accomplish additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States 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 ROs 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. Richard B. Frank 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).