Citation Nr: 0004641 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 97-04 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a severe stomach disorder, due to exposure to herbicides. 2. Entitlement to service connection for a back disorder, due to exposure to herbicides. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. E. Larkin, Associate Counsel INTRODUCTION The veteran served on active duty from February 1969 to November 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 1996 rating action of the Huntington, West Virginia Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran was scheduled for and notified of personal hearings to be held at the RO in December 1997 and June 1999; however, he failed to report to either hearing. REMAND The veteran contends that service connection is warranted for the claimed conditions as they are related to his military service. Initially, the Board notes that service connection for a stomach disorder (peptic ulcer disease) was denied by the RO in August 1984. In a June 1993 decision, the RO determined that the veteran had submitted new and material evidence to reopen the previously denied claim, then denied the claim of service connection for a stomach disorder on the merits. In the present appeal, the veteran contends that he is suffering a stomach disorder which is caused by peripheral neuropathy which, in turn, was incurred as a result of exposure to herbicides. The Board notes, as did apparently the RO, that, in view of the evolving state of the law governing presumption of service connection due to Agent Orange exposure, de novo consideration of this aspect of the veteran's claim for service connection is appropriate. See Spencer v. Brown, 4 Vet. App. 284 (1993). The Board also notes that VA does not have a statutory duty to assist a claimant in developing facts pertinent to a claim which is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). See also Boeck v. Brown, 6 Vet. App. 14, 17 (1993) and Grivois v. Brown, 6 Vet. App 136, 140 (1994). In fact, VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (1999). However, if a claimant's application for benefits is incomplete, VA shall notify him of the evidence necessary to complete the application. 38 U.S.C.A. § 5103(a). An application is incomplete if VA is put on notice of the likely existence of competent evidence that would, if true, be relevant to, indeed, necessary for, a full and fair adjudication of an appellant's claim. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). In September 1996, the veteran submitted completed Authorizations for Release of Information identifying a private hospital and a VA facility as sources of medical records. It does not appear that the RO has attempted to obtain the VA records or advise the veteran to obtain and submit non-VA records. Under the circumstances of this case, the Board is of the opinion that VA has been put on notice that relevant evidence exists, or could be obtained, which if true, could make the veteran's claim plausible. As such, VA has a duty to obtain VA medical records and advise the veteran that he should obtain and submit any pertinent non-VA records. In a December 1992 letter, the RO contacted the Office of the Adjutant General and requested information regarding medical records from the veteran's period of service with the West Virginia National Guard. To date, there has been no response to that request. On remand, the RO should make another attempt to obtain any available records. Finally, the Board notes that an August 1994 rating decision denied claims of increased rating for the service-connected dorsal spine disorder and a claim for a total rating based on individual unemployability. In October 1994, the veteran submitted a letter requesting a personal hearing on those issues and such a hearing was held at the RO in November 1994. Thereafter, in a May 1995 decision, the Hearing Officer continued the previous denials of the claims. The Board finds that the veteran's hearing testimony can be construed as a timely notice of disagreement (NOD). Accordingly, the Board is required to remand these issues to the RO for issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). Thus, the case is REMANDED to the RO for the following action: 1. The RO should attempt to obtain copies of all records of VA treatment of the veteran for the disabilities at issue. 2. The RO should make another attempt to secure the veteran's service medical records pertaining to his service with the West Virginia National Guard through official channels. 3. The RO should contact the veteran and ask that he submit any additional evidence which tends to support his position that the claimed stomach and back disorders are related to service, to include any records of treatment from Jackson General Hospital and Roane General Hospital. Any documents received by the RO should be associated with the claims folder. 4. After the development requested above has been completed, the RO should again review the veteran's claims. If it is determined that a well-grounded claim has been presented, the RO should undertake all appropriate development, including affording the veteran a VA medical examination. If any benefit sought on appeal remains denied, the veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 5. The issues of entitlement to an increased rating for the service- connected dorsal spine disability and a total rating based on individual unemployability should be considered again. Should any denial be continued, a statement of the case should be issued. The veteran should be advised that he must complete his appeal by filing a timely substantive appeal on the aforementioned issues to be afforded Board consideration of these matters. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. 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. BARBARA B. COPELAND 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).