Citation Nr: 0001176 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 94-49 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right knee injury. 2. Entitlement to service connection for heart disease. 3. Entitlement to service connection for diabetes mellitus (elevated blood sugars). 4. Entitlement to service connection for chronic fungus. 5. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.D. Jackson, Counsel REMAND The veteran had active service from September 1950 until September 1952 and several periods of active duty for training (ACDUTRA) thereafter. This case was remanded in December 1996. The veteran claims that he sustained an injury to the right knee in July 1975. He also points out that in the summer of 1972 he was diagnosed with hyperlipoproteinemia, acute myocardial infarction, diabetes mellitus, and tinea pedis. He maintains that because these disabilities occurred while he was on ACDUTRA he should be granted service connection for each. The RO denied the majority of his claims indicating that the veteran was not on ACDUTRA. As explained below, further development is required. See Stegall v. West, 11 Vet. App. 268 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As noted in the previous Remand the claims file contained conflicting information regarding the veteran's exact dates of ACDUTRA, particularly dates of service in the summer of 1972. The record contains several photocopies of an October 1990 Statement of Service that reflects ACDUTRA in 1972 only between the dates of July 1, 1972, and July 17, 1972. In contrast, the veteran has submitted photocopies of documents to support his assertion that he was on ACDUTRA when he was hospitalized in June 1972. A Record of Assignments indicates that he entered ACDUTRA for 17 days beginning on June 8, 1972, and returned to Ready Reserve status on June 25, 1972. He has also submitted a copy of an April 1972 letter of orders to report for annual training from June 10 to June 24, 1972, and other departmental documents showing annual training beginning in June 1972. These include a memorandum dated September 5, 1972, that authorizes the veteran to receive follow up medical care at a federal medical treatment facility for a condition incurred during a period of ACDUTRA June 8 to 24, 1972, at the Military Ocean Terminal, Kingsland, Georgia. There is also a copy of memorandum orders for the veteran, dated August 18, 1972, which indicate that he reported to the Naval Hospital, Jacksonville, Florida, without orders on June 20, 1972, for treatment, and that he was discharged from treatment on the date of the memorandum to report to a specified U.S. Public Health Service hospital no later than August 21, 1972. In further contrast, the record also contains a carbon copy of a clinical record narrative summary that indicates that the veteran was admitted to a military facility on June 20, 1972, left on convalescent leave on July 7, 1972, returned on August 7, 1972, and was discharged on August 10, 1972. This document indicates that when the veteran was admitted in June 1972, he was reportedly on active duty. The Board requested that the RO verify the veteran's dates of service and his duty status during his period of service with the Reserve. However, the development performed by the RO failed to resolve the discrepancies noted above. A review of the claims file shows that the RO in April 1997 contacted the National Personnel Records Center (NPRC) and requested verification of all ACDUTRA dates. The NPRC sent another copy of the Statement of Service. This document was of record at the time of the Remand. While the RO in April 1997 requested verification of all ACDUTRA and also indicated to the NPRC that there were discrepancies in his dates of ACDUTRA, it was not clearly explained that his Statement of Service conflicted not only with medical records but also with the veteran's Record of Assignments. In this instance, a more detailed search may help in determining the case. For instance, a review of the veteran's service administrative records file may be helpful in clearing up these discrepancies including copies of pay records or Record of Assignments. The Remand also noted that the veteran submitted a VA Form DD 689 dated in July 1975 denoting a refill prescription for an injured knee. The RO requested records from the NPRC in April 1997, however, the NPRC reported that the veteran's records were not yet retired and suggested that the RO contact the McDonald Army Community Hospital in Ft. Eustis, Virginia. It does not appear that the RO followed this suggestion. The case is REMANDED to the RO for the following development: 1. The RO should request the appropriate sources to verify the veteran's dates of service and the type of service during each period, i.e., whether it was active duty, active duty for training, or inactive duty training. The RO should obtain copies of any service department record that would possibly shed light on the veteran's duty status at all times during his time with the Reserves. In particular, the RO should request an official copy of his Record of Assignments or any other pertinent record within the veteran's 201 file. In any request for records the RO should clearly explain the numerous discrepancies in the record -- especially concerning the period between June and August 1972. Due to the numerous discrepancies in the record, the RO should consider special follow-up by its military records specialist. See VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part III and Part IV. 2. The RO should attempt to obtain records of treatment in 1975 for the right knee directly from the military facility, McDonald Army Community Hospital, Fort Eustis, Virginia. If necessary, the veteran should be requested to provide additional information concerning such treatment. 3. After the development requested above has been completed, 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 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, 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. 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. MARY GALLAGHER 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).