Citation Nr: 0000995 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 98-14 228A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for frostbite. 2. Entitlement to service connection for an inguinal rupture. 3. Entitlement to service connection for a neck condition. 4. Entitlement to service connection for a shoulder condition. 5. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARINGS ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD L. McCain Parson, Associate Counsel INTRODUCTION The veteran had verified service from January 1953 to December 1954. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board observes that the veteran changed his power of attorney during the pendency of this appeal in favor of the Texas Veterans Commission in June 1998. Effective March 1, 1999, the United States Court of Veterans Appeals changed its name to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). REMAND The Court has held that there is some duty to advise the claimant of the elements necessary to complete his application for benefits under 38 U.S.C.A. §§ 5103(a), 5107(a) (1999), depending on the particular facts in each case. See Beausoleil v. Brown, 8 Vet. App. 459 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995). By VA letter dated in June 1997, the RO requested that the veteran complete and return an enclosed NA Form 13055. At the same time, the RO submitted a VA Form 21-3101 to the National Personnel Records Center (NPRC) for the veteran's service medical records. In June 1997, the veteran submitted a statement in support of his claim noting that he served with the 1st Cavalry Division in Korea. In July 1997, the NPRC responded to the RO's June 1997 request for service medical records noting no medical records on file at the NPRC and fire related service. The NPRC requested that the veteran complete a NA Form 13055 to aid in further search efforts. See Cuevas v. Principi, 3 Vet. App. 542 (1992) (The VA has an obligation to search for alternative medical records when service medical records are presumed destroyed); Jolley v. Derwinski, 1 Vet. App. 37 (1990) (The VA has a statutory duty to assist the appellant in obtaining military records). On review of the claims file to include the transcript of the September 1998 personal hearing, the Board notes that the veteran served on active duty from January 1953 to December 1954. He was assigned to the 1st U.S. Army Calvary Division stationed in Korea in the northern most part of South Korea, along the demilitarized zone, in the very early 1950's, just after the cease fire. He contends that frostbite, an inguinal rupture, a neck condition, a shoulder condition, and headaches were incurred while on active duty. Based on recent case law, the Board finds that an additional attempt to obtain service medical records is warranted. The claims folder bears only one negative response from the NPRC and no additional requests for service medical records or alternative medical records based on subsequently obtained evidence that may be determinative in the search. As additional action by the RO may be helpful in either obtaining putative service medical records held by the service department that are not currently of record or additional documented information that the service records cannot be obtained, the Board determines that further development in this regard is warranted. See Hayre v. West, 188 F.3d 1327, (Fed. Cir. 1999) (holding that VA must in certain cases make multiple attempts to obtain service medical records and notify the veteran of its failure to obtain them). Moreover, the veteran testified at the personal hearing conducted in October 1999 before a member of the Board that he had undergone medical evaluation at the VA on October 20, 1999 with a diagnosis of frostbite. Hearing transcript, (T.), page 8. He also related having attended a VA specialty examination a few months earlier reportedly for the alleged frostbite injury. T. 8. See Bell v. Derwinski, 2 Vet. App. 611 (1992); Counts v. Brown, 6 Vet. App. 473 (1994). On remand, these records should be obtained for consideration by the RO. In any event, the VA has an obligation under 38 U.S.C.A. § 5103(a), to advise the veteran of the evidence necessary to complete his application for VA benefits. See Beausoleil and Robinette, both supra. In this case, the veteran is hereby notified that preliminary review indicates that the evidence necessary to complete his application for service connection for frostbite, an inguinal hernia, a neck condition, a shoulder condition, and headaches is competent medical evidence of currently diagnosed disabilities which are related to his period of military service. Once the above development is completed, the record must again be reviewed to determine whether these claims are ultimately well-grounded. Accordingly, the veteran is advised that, unless the development directed herein coincidentally provides evidence on the theories of entitlement to service connection, he is still under an obligation to provide such evidence. See 38 C.F.R. § 5107. In order to give the veteran every consideration with respect to the present appeal, the case is REMANDED for the following action: 1. The RO should make another attempt to secure any available service medical records to include morning and sick reports, and records from the Office of the Surgeon General through official channels for his period of service, with the specific information provided by the veteran. All outstanding VA outpatient treatment records, including for the period of June 1998 to the present, should be obtained. These records should be associated with the claims folder. If any request is not fulfilled, the responding agency must submit a written statement to that effect. 2. Following completion of the above development, to the extent possible, the RO should make a specific determination, based upon the complete record, with respect to whether or not the veteran has presented well- grounded claims for entitlement to service connection for frostbite, an inguinal hernia, a neck condition, a shoulder condition, and headaches. Based on this determination, and if appropriate, see Morton v. West, 12 Vet. App. 477 (1999), the RO should accomplish any further indicated development. If the determination remains adverse to the veteran, the RO should furnish the veteran and his representative a supplemental statement of the case and provide them an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if appropriate. The Board does not intimate any opinion, either factual or legal, as to the ultimate disposition of these issues. No action is required of the veteran unless he is notified by the RO. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. See 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 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. M. Sabulsky 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).