BVA9507386 DOCKET NO. 93-15 952 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for shrapnel wounds to right arm, shoulder, and head. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. A. McDonald, Associate Counsel INTRODUCTION The veteran served on active duty from November 1944 to July 1946. This case comes to the Board of Veterans' Appeals (hereinafter Board) on appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee (hereinafter RO). The Board notes that the veteran has raised additional issues of entitlement to service connection for headaches and eye pain. These issues have not been developed for appellate review and are referred to the RO for appropriate consideration. REMAND The veteran contends that while in service he incurred shrapnel wounds to the right arm, shoulder, and head when a jeep he was riding in hit a land mine in 1945. His service medical records confirm he incurred injuries when thrown from jeep in April 1946. As a result of this accident, the service medical records reveal that the veteran was hospitalized for a month, with multiple wounds, lacerations, contusion of the scalp and face, concussion, and a simple fracture of the left parietal bone. It is not specifically noted that the veteran incurred shrapnel wounds. However, a VA examination conducted in July 1959, noted a defect above the right temple where a piece of metal "caught him." Furthermore, a VA outpatient treatment record in April 1992, notes that the veteran had limited extension of the right elbow with chronic pain due to an old shrapnel wound. Additionally, a VA orthopedic examination that same month, reports that the veteran had multiple shrapnel wounds on the head, chest, and right arm. Significantly, entrance and exit scars were noted on the right elbow. As such, the Board concludes that the veteran's claim is well- grounded within the meaning of the statute and judicial construction. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); 38 U.S.C.A. § 5107(a) (West 1991). The Department of Veterans Affairs (hereinafter VA) therefore has a duty to assist the veteran in the development of facts pertinent to his claim. Id.; 38 C.F.R. § 3.103(a) (1994). The United States Court of Veterans Appeals (hereinafter Court) has held that the VA has a statutory duty to assist the veteran in obtaining military service records. Jolley v. Derwinski, 1 Vet.App. 37 (1990). The veteran's service medical records indicate the veteran was hospitalized at the 76th Sta Hospital as a result of the jeep accident in April 1946. When the Department of Veterans Affairs (hereinafter VA) is put on notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. Murincsak v. Derwinski, 2 Vet.App. 363, 370 (1992). The veteran's service medical records associated with his claims file do not include clinical records from the 76th Sta Hospital. In order to fulfill its duty to assist the veteran, these records must be sought by the RO. See Dixon v. Derwinski, 3 Vet.App. 261 (1992). The RO should also obtain information from the hospital admission cards created by the Office of the Surgeon General, Department of the Army, in order to procure any further evidence of the veteran's hospitalization during April 1946, while in Tokyo, Japan. Additionally, in the Statement of Accredited Representation in an Appealed Case dated July 1993, the veteran's representative requested that line of duty reports be obtained to confirm that the jeep accident was caused by a land mine, which in turn resulted in shrapnel wounds. The Court has held that the "fulfillment of the statutory duty to assist...includes the conduct of a thorough and contemporaneous medical examination...." Green v. Derwinski, 1 Vet.App. 121, 124 (1991). This examination should include "a medical opinion as to whether [the veteran's] current disabilities are in any way related to . . . service." Witherspoon v. Derwinski, 2 Vet.App. 4 (1991). The Board therefore concludes that a VA examination would provide a record upon which a fair, equitable, and procedurally correct decision on the veteran's claim for entitlement to service connection for shrapnel wounds to the right arm, shoulder, and head, can be made. 38 C.F.R. § 3.326 (1994). "Where the record is inadequate for the purpose of fairly deciding the veteran's claim, VA's statutory duty to assist requires it to help a claimant develop the facts pertinent to his or her claim prior to deciding it." Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The Board therefore remands the case to the RO so that it may more adequately develop the evidence as noted below. 1. All pertinent treatment records from private and VA sources subsequent to August 1992 should be obtained and associated with the claims file. 2. The veteran should be contacted and requested to provide additional information regarding the wounds. The veteran should report the day, month, and year of the injury, the place of the injury and the location of the wounds. In addition, the veteran should explain whether there were two jeep accidents (1945 and 1946) or just one accident. The veteran should report whether he was engaged in combat at the time of the injury. He should also clarify whether he was ever in the Tank Corps. 3. The RO should obtain line-of-duty reports for the veteran in April 1946 and/or the 1945 incident. Additionally, the RO should contact the National Personnel Records Center to specifically request clinical records from the 76th Sta Hospital, during April 1946 in Tokyo, Japan. The RO should also contact the Surgeon General of the Department of the Army for any information they may have regarding the veteran's hospitalization in April 1946. 4. The veteran should be afforded a VA examination to determine if the veteran currently has residuals of shrapnel wounds to the right arm, shoulder, and head. The examination should be performed in accordance with the VA's Physician's Guide for Disability Evaluation Examinations. All pertinent symptomatology, and findings should be reported in detail. All indicated studies and diagnostic tests should be performed. The claims file must be made available to the examiner prior to the examination, for use in the study of the veteran's case. The examiner should obtain a detailed medical history regarding the wounds. When the above actions have been completed, the case should be reviewed by the RO. If the issue remains denied, a supplemental statement of the case should be provided to the veteran and his representative. After the veteran has had an adequate opportunity to respond to the supplemental statement of the case, the appeal should be returned to the Board for appellate review. No action is required by the veteran until he receives further notice. H. N. SCHWARTZ 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) (1994).