Citation Nr: 0001515 Decision Date: 01/19/00 Archive Date: 03/02/00 DOCKET NO. 95-32 982A DATE JAN 19, 2000 On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a bilateral knee disorder. 3. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Casula, Associate Counsel INTRODUCTION The veteran had active service from February 1943 to May 1946. This matter comes before the Board of Veterans' Appeals (Board) from a July 1995 rating decision of the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for residuals of a bilateral knee injury, denied service connection for hearing loss, and denied service connection for osteoporosis of the spine. In September 1998 the Board remanded this matter to the RO for further evidentiary development. As more fully explained below, the Board finds that this matter must once again be remanded. REMAND In the September 1998 remand, the Board indicated that the only service medical records in the claims file, a May 1946 separation examination report and a 1944 hospital admission card from the office of the Surgeon General, did not show hearing loss, back, or knee disability. It was noted that service medical records were incomplete, and that the extent of development for further service medical records was not documented. It was also noted that where service medical records are lost, there is a heightened duty on VA to assist the veteran. The RO was directed to arrange for an exhaustive search for the veteran's service medical records, including asking the veteran whether he had any original records or copies in his possession and advising him to submit copies of any such records. The RO was also directed to document all such efforts to obtain the veteran's service medical records. In October 1998 the RO sent a letter to the veteran requesting that if he had any original or copies of his service medical records in his possession, that he should send them to the RO. The record reflects that the veteran did not respond to this letter. There is no indication from the record, however, that the RO made any other attempts, or conducted an "exhaustive search", in order to obtain additional service - 2 - medical records. As service medical records are considered to be constructively of record, they must be obtained or accounted for. The Board regrets the necessity to once again remand this case for additional development by the RO. However, there has been a failure to comply with the terms of the Board's September 1998 remand order, thus rendering the record incomplete and impeding the Board's review. These developmental deficiencies must be addressed prior to the Board rendering a decision. In light of the U.S. Court of Appeals for Veterans Claims (Court) directive to the Board regarding remands, the Board is compelled to remand this case for the RO to fully comply with the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998). In Stegall the Court held that a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders and that a remand by the Board imposes upon the RO a concomitant duty to ensure compliance with all of the terms of the remand. The Court noted that where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. Accordingly, this matter is REMANDED to the RO for the following: 1. The RO should arrange for an exhaustive search for the veteran's service medical records. All efforts to obtain his service medical records should be documented. If there are no additional service medical records available, then it should be so certified. 2. Following the completion of the requested development, the RO should review the veteran's claims based on all of the evidence of record. If any action taken remains adverse to the veteran, he and his representative should be provided a supplemental statement of the case and a reasonable period of time for response. 3 - Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no action until otherwise notified. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). 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). The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. 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. C. SYMANSKI 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). 4 -