Citation Nr: 0003352 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 95-01 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a skin disorder. 2. Entitlement to service connection for asthma. 3. Entitlement to service connection for emphysema. 4. Entitlement to service connection for bronchitis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Richard E. Coppola, Counsel INTRODUCTION The veteran served on active duty from October 1942 to September 1944. The current appeal arose from a July 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The RO denied entitlement to service connection for a skin disorder as secondary to mustard gas exposure. The Board of Veterans' Appeals (Board) remanded the case to the RO for further development and adjudicative actions in June 1996. In February 1998 the RO, in pertinent part, denied entitlement to service connection for asthma, emphysema, and bronchitis. The veteran and his wife provided testimony before a hearing officer at the RO in August 1998, a transcript of which has been associated with the claims file. In January 1999 the hearing officer affirmed the determinations previously entered. The case has been returned to the Board for further appellate review. REMAND 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). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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. The veteran contends that he is suffering from a skin disorder, asthma, emphysema and bronchitis as the result of exposure to mustard gas and Lewisite during service. The veteran has repeatedly argued that his service medical records are incomplete. The veteran filed his original application for service connection in September 1944. The evidence shows that the RO requested and received a copy of the veteran's September 1942 medical entrance examination, his Soldier's Qualification Card, WD AGO Form 20, his original service hospitalization records, and a copy of his Certificate of Disability for Discharge, WD AGO Form 40. These records were received in September 1944 from the Office of the Registrar, Station Hospital, at Camp Forrest, Tennessee. The service records show that this was the veteran's duty station at the time of his discharge in September 1944. The service hospitalization records consist of February 1943 hospitalization records from the hospital located at Edgewood Arsenal, Maryland, showing treatment for acute pharyngitis; July 1943 hospitalization records from the station hospital located at Camp Sibert, Alabama, showing treatment for neuro- circulatory asthenia; and, September 1944 hospital records from the hospital located at Camp Forrest, Tennessee, showing treatment for bronchial asthma. These records were received at the RO prior to the 1973 fire at the National Personnel Records Center (NPRC). The veteran insists that the RO does not have his complete service medical records. He reported that in response to his own request for information, he received a letter from the NPRC indicating that his records may have been destroyed in a fire at that facility in 1973. In June 1996 the Board remanded the case, in part, because of the veteran's contention that he had been hospitalized and treated on more than one occasion at these duty stations, particularly while stationed at Edgewood Arsenal, Maryland. The Board noted that the claims folder did not include any indication that the RO contacted the NPRC in an attempt to verify that all available records were searched. This was not performed. A February 1998 letter from the Department of the Army, Headquarters, U.S. Army Medical Command, to a United States Senator shows that medical records could not be located at that facility. The letter stated that any service medical records for this veteran would be located at the NPRC in Saint Louis, Missouri. In addition, there is no indication that alternative sources were contacted in order to obtain evidence showing the veteran was hospitalized on other occasions for skin and respiratory problems associated with exposure to mustard gas and Lewisite during active service. The RO is advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and a further remand of the case will be mandated. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the case is REMANDED for the following action: 1. The RO should ascertain whether there are additional service medical records that have not been obtained. This should include a request to NPRC. The veteran insists that the RO does not have his complete service medical records. The veteran served at Edgewood Arsenal, Maryland from January 1943 to March 1943; at Camp Sibert, Alabama from March 1943 to May 1944; at HQ Det. SCU 1478 in Crossville, Tennessee from May 1944 to August 1944; and, at Camp Forrest, Tennessee from August 1944 to September 1944. The veteran contends that he had been hospitalized and treated on more than one occasion at these duty stations, particularly while stationed at Edgewood Arsenal, Maryland. The records search should also include requests to alternative sources, including the Office of the Surgeon General. The RO should document the attempts made to obtain any additional service medical records, including a certification from all requested facilities that there are no other service medical treatment or hospitalization records. 2. The RO should notify the veteran that he might provide any additional evidence and argument in support of his claim. 3. The RO should then adjudicate the claims for service connection. The RO should determine if the claims are well grounded, and if so, conduct any development necessary in accordance with 38 U.S.C.A. § 5107(a) (West 1991). If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case and provide the veteran and his representative a reasonable period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. An appellant and his or her representative will be granted a period of 90 days following the mailing of notice to them that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the Board of Veterans' Appeals, whichever comes first, during which they may submit a request for a personal hearing, or a request for a change in representation. 38 C.F.R. § 20.1304(a) (1999). RONALD R. BOSCH 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 Court. 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).