Citation Nr: 0007678 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 97-25 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for depression. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from May 1977 to March 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1997 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee, which denied a claim by the veteran seeking entitlement to service connection for depression. REMAND The veteran contends, in essence, that he currently has depression and that this disability was first incurred during his active duty service. After careful review of the claims file, the Board finds that this case is not yet ready for appellate review. Initially, the Board notes that the law provides that "a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C.A. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit held that, under 38 U.S.C. § 5107(a), VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the Court issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). However, regardless of whether a claim is found to be well grounded or not, and prior to that determination, the VA has an initial duty to insure the veteran of full due process. 38 C.F.R. § 3.103 (1999). This includes making an attempt to obtain any and all available service medical records. In this case, the veteran's full service medical records are not of record. Only those records associated with an attempt to re-enlist in the United States Army Reserves in November 1992 are part of the claims file. No records from his period of active duty from May 1977 to March 1983 are of record. The RO requested such records from the National Personnel Records Center (NPRC) in August 1996. A September 1996 reply from NPRC forwarded the above-mentioned Army Reserves records, but no active duty records. In December 1996, the RO again submitted a request for service medical records to the NPRC. The RO specifically instructed that a negative reply be provided if such records were not available. It apparently submitted a follow-up request in February 1997. An April 1997 Report of Contact, VA Form 119, shows that the request for service medical records was referred to a military records specialist. That form shows that no reply from the NPRC in regards to either the December 1996 or February 1997 requests was received at the RO; the claims file also contains no reply from NPRC. In light of the above, the Board finds that it is not yet certain that the veteran's service medical records are not available. As such, the Board finds that VA's initial duty to develop the record and insure full due process has not yet been fulfilled. The RO must contact the NPRC to determine the outcome of its most recent requests for service medical records prior to appellate review of this case. The Board makes no finding as to whether the veteran has presented a well grounded claim, invoking a duty to assist. See 38 U.S.C.A. § 5107(a) (West 1991). Accordingly, further appellate consideration will be deferred and the case is REMANDED to the RO for the following development: 1. The RO should attempt to obtain the veteran's service medical records, covering active duty service with the United States Army from May 1977 to March 1983, from the NPRC in St. Louis, Missouri. If such records are not available, the reason for the records unavailability should be documented in the claims folder. 2. Thereafter, the RO should review the veteran's claim of entitlement to service connection for depression. The RO's decision must discuss the additional evidence developed, if any. 3. If the decision remains unfavorable in any way, the veteran and his representative should be provided with a Supplemental Statement of the Case in accordance with 38 U.S.C.A. § 7105 (West 1991), which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons and bases for the decision reached. Thereafter, the veteran and his representative should be afforded the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND the Board intimates no opinion, either factual or legal, as to the ultimate determination warranted in this case. No action is required of the veteran until he receives further notice. 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. A. BRYANT 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).