Citation Nr: 0006029 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 96-15 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P.M. DiLorenzo, Counsel INTRODUCTION The veteran served on active duty for training (ACDUTRA) from June to October 1973 and on active duty from January 1974 to October 1980 and from November 1990 to April 1991. He also apparently served on ACDUTRA or inactive duty training (IADT) in January 1993; however, these dates are unconfirmed. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that denied the above-noted claim. The case was subsequently transferred to the RO in St. Petersburg, Florida. In June 1997, a hearing was held before the undersigned Board member making this decision who was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7107(c) (West Supp. 1999). REMAND In September 1997, the Board remanded this case to the RO. Unfortunately, it is again necessary to remand this claim. In essence, the Board finds that the RO has not substantially complied with the directives of the Board's previous remand. See Talley v. Brown, 6 Vet. App. 72, 74 (1993). A Board remand confers upon the veteran the right to compliance with the remand orders, and VA has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). The prior remand specifically instructed the RO to request verification of the complete dates of the veteran's service, as well as the type of service during each period of enlistment, including in January 1993. The RO's request to the National Personnel Records Center (NPRC) and the NPRC's response in 1997 did not address any service performed by the veteran in 1993. Additional development is warranted in this regard. Additional evidence obtained on remand further shows that the veteran has been treated by Dr. Smith. It also appears that he may have applied for Social Security Administration (SSA) benefits. Therefore, the RO should make arrangements to obtain these records on remand, as the duty to assist involves obtaining relevant medical reports where indicated by the facts and circumstances of the individual case. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). Such duty extends to obtaining records from other Government agencies such as the SSA. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, the case is REMANDED for the following development: 1. The RO should contact the Adjutant General of the Georgia National Guard, the NPRC and any other indicated agency, and request verification of the complete dates of the veteran's service (including any service performed in January 1993), as well as the type of service during each period of enlistment, i.e., whether it was active duty, active duty for training or inactive duty for training. All periods of active duty for training or inactive duty for training should be separately noted. The RO should also request copies of the veteran's complete service personnel records and service medical records, to include all periods of National Guard duty and all entrance and separation physicals and clinical records. 2. The RO should make arrangements to obtain the veteran's treatment records concerning a back disorder from Dr. Smith. On requesting these records, the RO should specify that actual treatment records, to include all diagnostic test results, as opposed to summaries, are requested. If the records are not obtained, the veteran should be told of the negative results and of his ultimate responsibility to provide the records. 38 C.F.R. § 3.159 (1999). 3. The RO should make the necessary arrangements to obtain a copy of any SSA decision denying or granting disability benefits to the veteran. The RO should request from the SSA copies of all the documents or evidentiary material that were used in considering the veteran's claim for disability benefits, including any reports of subsequent examinations or treatment. If these records are duplicates of those already on file, that fact should be annotated in the claims folder. Any other pertinent records should be associated with the claims folder. 4. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Stegall v. West, 11 Vet. App. 268 (1998). 5. The veteran is hereby informed that he is free to submit additional evidence or argument while the case is on remand. Quarles v. Derwinski, 3 Vet. App. 129 (1992); and Kutscherousky v. West, 12 Vet. App. 369 (1999). 6. The RO should then readjudicate the veteran's claim, with application of all appropriate laws and regulations and consideration of any additional information obtained as a result of this remand. The RO should consider carefully and with heighten mindfulness the benefit of the doubt rule, if applicable. 38 U.S.C.A. § 5107(b). If the evidence is not in equipoise the RO should explain why. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991). Then, if the decision with respect to the claim remains adverse to the veteran, he and his representative, if any, should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. Then, the claims folder should be returned to the Board for further appellate consideration. The veteran need take no action until he is so informed. The purposes of this REMAND are to obtain additional information and to comply with all due process considerations. 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. JOAQUIN AGUAYO-PERELES 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).