BVA9508094 DOCKET NO. 93-09 966 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Basic eligibility for home loan guaranty benefits under Chapter 37, Title 38, United States Code. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael A. Pappas, Associate Counsel INTRODUCTION The appellant served on active duty from February 18, 1976, to March 23, 1976. This matter comes before the Board of Veterans' Appeals (the Board) based upon a decision of the Department of Veterans Affairs (VA) Philadelphia, Pennsylvania, Regional Office's Loan Guaranty Division (RO). A July 1991 decision of the RO denied the appellant's request for a Certificate of Eligibility for Loan Guaranty Benefits. A hearing was held before a member of the Board sitting at Philadelphia, Pennsylvania. The appeal was received and docketed at the Board in May 1993. The appellant has been represented throughout his appeal by the Veterans of Foreign Wars of the United States. REMAND In order to be eligible for certain VA benefits, to include home loan guaranty benefits, an enlisted service member who initially entered active duty service after May 7, 1975, and before September 8, 1980, must generally perform a "minimum duty" requirement; either 24 months of continuous active duty or the full period for which the service member was called or ordered to active duty. However, the basic eligibility requirements for VA benefits as set forth under 38 U.S.C.A. § 5303A do not apply, in pertinent part, if a service member was discharged or released from active duty because of an early out or hardship (10 U.S.C. § 1171 or § 1173); or if a service member was discharged or released from active duty because of a disability incurred or aggravated in the line of duty; or for a service member who currently has a compensable service-connected disability; or a number of other reasons, each requiring performance of active duty. 38 U.S.C.A. § 5303A (b)(3) (A)-(F) (West 1991); 38 C.F.R. § 3.12a (1994) (Emphasis Added). It is clear that the appellant did not serve the required minimum period of active duty for purposes of establishing his basic eligibility for VA benefits. If he is to become eligible, it must be established that he meets at least one of the enumerated exceptions existing under 38 U.S.C.A. § 5303A. A review of the record establishes that a rating decision of July 1976 denied the appellant's claim for service connection for a left inguinal hernia, based upon a finding that the disorder existed prior to service and was not aggravated therein. The appellant was notified of that decision by letter dated in August 1976. That decision was not appealed and became final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.1103 (1994). Absent the presentation of new and material evidence, the claim may not be reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). It is the appellant's primary contention that service connection for a left inguinal hernia was improperly denied. Specifically, the appellant believes that the service medical board and the VA erroneously concluded that he had a left inguinal hernia prior to service. The appellant asserts that he, in fact, had a right inguinal hernia prior to service which had been repaired by surgery in 1972. He argues that a left inguinal hernia did not exist prior to service, but was service-incurred. Consequently, according to the appellant, since service connection is warranted for a left inguinal hernia, and since he was released from service as a result of that left inguinal hernia, he must be included within one of the recognized exceptions to basic eligibility requirements for VA loan guaranty benefits. Moreover, the representative has alleged clear and unmistakable error in the 1976 denial of service connection for left inguinal hernia. See Undated Memorandum to Adjudication, received April 21, 1993. The United States Court of Veterans Appeals (the Court) has held that, if a recently raised issue is "inextricably intertwined" with the issue or issues certified for appeal, they must be considered simultaneously. Harris v. Derwinski, 1 Vet.App. 180 (1991). Since the claim currently certified for appeal is dependent upon a resolution of the issue of whether the appellant has presented new and material evidence to reopen a claim for entitlement to service connection for a left inguinal hernia, and ultimately, whether the appellant is entitled to service connection for that disorder, they must be considered as inextricably intertwined and considered simultaneously. Id. Further, the VA has a duty to assist the appellant in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994) This duty includes assisting the appellant in securing clinical and treatment records when the appellant asserts that such records exist, but are not on file. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Littke v. Derwinski, 1 Vet.App. 90 (1990). The appellant's service medical records indicate that he had hernia surgery performed by Dr. David Brody in October 1972 at Northside Hospital on Gypsy Lane in Youngstown, Ohio. The appellant testified at his recent hearing that, from 1972 until prior to his entry into service in 1976, he was treated by a family physician, Dr. Bookbinder, of the Grove City Hospital in Grove City, Pennsylvania. He indicated that Dr. Bookbinder currently resides in Slippery Rock, Pennsylvania. The appellant also testified that, during his abbreviated period of service, he was treated for a rupture in the groin area at the Ireland Army Hospital. The foregoing treatment records may be pertinent to the appellant's claim. A search has not been undertaken for them, nor have the records otherwise been secured. Under the circumstances of this case, the Board is of the opinion that the issue of whether the appellant has presented new and material evidence to reopen a claim for entitlement to service connection for a left inguinal hernia should be considered along with the issue certified for appeal. Moreover, additional development is required. The case is remanded to the RO for the following: 1. The appellant should be asked to provide the name and address of any private physician or treatment facility by which he has been evaluated or treated for any inguinal hernia prior to and since service. Specific inquiries should be made of the appellant as to the exact address of Dr. Bookbinder, in Slippery Rock, Pennsylvania, and Dr. David Brody of Youngstown, Ohio. If the appellant can not provide the street address for those or any other physicians, an attempt should be made to locate them through "Directory Assistance" or the like. Any medical providers identified should be asked to provide copies of the appellant's medical records. Specifically, the records of hernia surgery performed by Dr. David Brody in October 1972 at Northside Hospital on Gypsy Lane in Youngstown, Ohio, and records of treatment from 1972 to 1976 by the appellant's family physician, Dr. Bookbinder, formerly of the Grove City Hospital in Grove City, Pennsylvania, but more recently of Slippery Rock, Pennsylvania. The Northside Hospital and Grove City Hospital should be contacted for records in addition to Drs. Bookbinder and Brody. The RO should also try to obtain records of treatment of the appellant at Ireland Army Hospital during service. The appellant should be asked to sign any necessary consent forms for the release of his private medical records. 2. Following the accumulation of the medical records requested above, a preliminary review of those records should be undertaken. Thereafter, the issue of entitlement to service connection for a left inguinal hernia should be adjudicated. In regard to that issue, the RO must address the representative's claim of clear and unmistakable error in the 1976 denial of service connection for left inguinal hernia and, if that matter is not resolved in the appellant's favor, the RO must determine whether there is the requisite new and material evidence to reopen a claim previously denied by the RO in accordance with 38 U.S.C.A. § 5108 and 38 C.F.R. § 3.156(a). If it is determined that new and material evidence has been submitted, then the claim must be adjudicated on a de novo basis, with consideration of all of the evidence of record, both old and new. If it is ultimately determined that service connection is warranted for a left inguinal hernia, then the issue of basic eligibility for home loan guaranty benefits should be readjudicated. If any of the benefits sought are not granted, the appellant and his representative should be furnished copies of a supplemental statement of the case. The appellant and his representative should be given an opportunity to respond. The appellant must initiate an appeal as to any new issue decided by the RO. Following compliance with appellate procedure, the case should be returned to the Board for further appellate consideration. No action by the appellant is required until he receives further notice. The purpose of this remand is to ensure due process, and assist the appellant in the development of his claim. JANE E. SHARP 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).