Citation Nr: 0004170 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 97-07 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Whether the character of the appellant's discharge from service constitutes a bar to the receipt of VA benefits, other than health care benefits under 38 U.S.C.A. Chapter 17. 2. Entitlement to service connection for a skin disability, claimed as a residual of Agent Orange exposure. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant REMAND The appellant had active service from September 1967 to August 1969. In March 1987, the Board of Veterans' Appeals (Board) remanded the issues of entitlement to service connection for a right foot disability and a skin disorder. When the case was again before the Board in November 1990, service connection was denied for a right foot disability. In a separate decision, the Board recharacterized the remaining issue as entitlement to service connection for a skin disorder, claimed as a residual of Agent Orange exposure, and again remanded the claim. The appellant subsequently submitted additional evidence, seeking to reopen the claim for service connection for a right foot disability. By administrative decision in May 1992, the RO concluded that the character of the appellant's discharge from service constituted a bar to his receipt of benefits from VA. In May 1997, the Board remanded the claim in an attempt to obtain additional information concerning the appellant's discharge from service. Subsequent thereto, in a decision dated in July 1997, it was determined that the character of the appellant's discharge from service constituted a bar to the receipt of VA benefits since the appellant did not qualify as a "veteran" for purposes of entitlement to VA benefits. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court) and in a June 29, 1999 order, the Court vacated and remanded the Board decision. In the order, it was stated that the Secretary asserted that the mental competency issue raised by the appellant and the absence of a search for probative records from the service department required a remand to the Board for further development. It was indicated that otherwise, the Court was left with an inadequate record to conduct judicial review. Reference was made to Hicks v. Brown, 8 Vet. App. 417, 422 (1995) (where the record is inadequate, a remand is the appropriate remedy). A review of the appellee's motion for remand and for stay of proceeding indicated that the review of the record showed the presence of few service medical records, and no documents regarding the appellant's alleged offense(s), witness statements, or investigative reports, nor any charge sheets, advice of counsel, or resignation letter. While the record revealed that several contacts had been made with the National Personnel Records Center, the record also revealed that no efforts had been made to locate the military command's military justice records regarding any alleged offenses, the investigative reports, and the resignation letter approved by higher headquarters. It was noted that such documents should be under the command and control of the service department, and would not ordinarily be located in the service member's personnel file. It was indicated that regarding the duty to assist , VA was to advise and assist the appellant in seeking information from alternative sources regarding copies of inservice medical treatment, and for personnel and military justice records concerning officer misconduct reports from the Headquarters and/or Staff Judge Advocate for the 8th Army, United States Army, Pacific, stationed in Korea. The undersigned notes that contacts made by the RO with the National Personnel Records Center revealed that any of the appellant's personnel records that had been in storage at that facility were presumably destroyed in the 1973 fire at the National Personnel Records Center in St. Louis. In cases where the appellant's service medical records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The heightened duty to assist the appellant in developing facts pertinent to his claim under the provisions of 38 U.S.C.A. § 5107(a) indicates where service medical records are presumed destroyed there is the obligation to search for alternative medical records. Moore v. Derwinski. 1 Vet. App. 401 (1991). Where the claimant's service medical records have been destroyed or lost, the Board is under a duty to advise the claimant to obtain other forms of evidence, such as lay testimony. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The VA adjudication procedure manual provides that alternate sources of evidence may be utilized in fire-related cases. A non-exhaustive list of documents follows which could be substituted for service medical records in this case: Statements from service medical personnel, "buddy" certificates or affidavits, employment physical examinations, medical evidence from hospitals, clinics and private physicians by which or by whom a veteran may have been treated, especially soon after service discharge, letters written during service, photographs taken during service, pharmacy prescription records, and insurance examinations. VA has a duty to assist the appellant in developing facts pertinent to a well-grounded claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159 (1999). While the appellant's claims have not yet been established to be well grounded, the considerations described above require a search for relevant military records and further investigation. When the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant in developing facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). To ensure the VA has met its duty to assist the appellant in developing the facts pertinent to the claim, the case is REMANDED for the following: 1. The RO should take appropriate steps to secure any additional military personnel records for the appellant through official channels, including a search for personnel and military justice records from the Headquarters and/or Staff Judge Advocate General's Office with the 8th Army, United States Army, Pacific, in 1969. Documents pertaining to any reported offenses, any witness statements, any investigation, and/or the resignation letter itself, should be requested from the Department of the Army, particularly the Staff Judge Advocate's Office with the 8th Army, United States Army, Pacific. 2. The appellant should also be asked to furnish any names and addresses of any businesses that required him to take an employment physical in the late 1960's and early 1970's. He should be asked whether he took any physical examinations for insurance purposes or Postal service. If so, the names and addresses of these companies or physicians who conducted such examinations should be specified. All leads should be pursued in order to obtain relevant evidence. After obtaining the appropriate releases from the appellant, these records should be obtained. Once obtained, all records must be associated with the claims file. 3. The RO should also contact the appellant and advise him that he may submit additional alternate evidence to support his contentions. This evidence may include copies of any service medical records or personnel records in his possession, any buddy certificates or affidavits, any medical evidence from hospitals, clinics, and physicians by which or by whom he may have been treated, especially soon after service discharge in 1969, and any letters written during service. 4. After the above development has been completed, the claims file should be referred to a VA psychiatrist. The purpose of this referral is to determine whether, based on review of all the evidence of record, it can be determined whether it is at least likely as not that the appellant was mentally competent at the time of his discharge from service in August 1969. If the review determines that a medical examination is necessary in order to formulate his or her medical opinion, such examination should be scheduled by the RO. After completion of the above, the RO should then adjudicate the appellant's claims of the appropriate legal bases and with consideration of all pertinent regulations. To the extent the benefits sought on appeal are not granted, the appellant and his representative should be provided with a supplemental statement of the case and be provided an opportunity for response. No action is required of the appellant until he is 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. Robert E. O'Brien Acting Member, Board of Veterans' Appeals 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) (1999).