BVA9504258 
DOCKET NO.  93-10 935     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Newark, New
Jersey

THE ISSUE

Entitlement to service connection for a bilateral foot disorder.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Jeffrey J. Schueler, Associate Counsel

REMAND

The veteran had active duty from November 1952 to November 1955.
It appears that the veteran's service medical records may have
been destroyed in a fire at the National Personnel Records Center
in July 1973.  The Board recognizes that there is a heightened
obligation  to explain  findings and conclusions and to carefully
consider the benefit-of-the doubt-rule (38 U.S.C.A. § 5107(b)) in
appeals where records are presumed to have been or were destroyed
while the file was in the possession of the government.  See
O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991).

A review of the transcript of the personal hearing held in June
1992 indicates that a portion of the hearing may not have been
transcribed.  On page one of the transcript, the following is
stated: "Due to technical difficulties, the first tape could not
be used by the typist in order to transcribe the hearing.  The
second cassette tape must be used in order to type the transcript
of this hearing.  So we will pick up the hearing in progress."
Page 14 of the transcript reads: "We should note here again that
only the information contained on the second cassette tape was
included in the transcript because of the defect which existed in
the first cassette tape.  If the veteran so desires, he may
submit a written statement which will be included into the record
as accepted evidence."

The transcript of the available portion of the personal hearing
also reveals that the veteran provided the names of physicians
who treated him prior to and immediately after service.  It is
not clear from his testimony whether it was his belief that no
relevant medical records prior to service or subsequent to
service could be obtained.

To ensure that the Department of Veterans Affairs (VA) has met
its duty to assist the claimant in developing the facts pertinent
to the claim and to ensure full compliance with due process
requirements, the case is REMANDED to the RO for the following
development:

1.  The RO should request that the veteran
supply the names and addresses of any
individuals or treatment facilities that
have treated him for a foot disorder prior
to active service or after service, whether
VA or private, and the dates of such
treatment.  After receiving proper
authorization from the veteran, if
necessary, the RO should obtain copies of
those records and associate them with the
claims folder.

2.  The RO should make another attempt to
secure the veteran's service medical
records through official channels.  In
addition, the RO should request the service
department to furnish the veteran's
personnel records

3.  The RO should contact the veteran in
order to determine whether he desires
another hearing.  If so, the RO should
schedule a hearing.  A complete and
thorough transcript of the proceedings
should be prepared and made a part of the
record on appeal.

4.  After the development requested above
has been completed to the extent possible,
the RO should again review the record.  If
any benefit sought on appeal, for which a
notice of disagreement has been filed,
remains denied, the appellant and his
representative should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.

Thereafter, the case should be returned to the Board of Veterans'
Appeals (Board), if in order.  The Board intimates no opinion as
to the ultimate outcome of this case.  The appellant need take no
action unless otherwise notified.

          JOHN E.ORMOND
          Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  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) (1993).