Citation Nr: 0336576 Decision Date: 12/30/03 Archive Date: 01/07/04 DOCKET NO. 02-08 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for the residuals of a left testicle injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD Jessica J. Wills, Law Clerk INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the benefit sought on appeal. The veteran, who had active service from May 1961 to April 1964, appealed that decision to the BVA, and the case was referred to the Board for appellate review. Notice of the September 2001 rating decision and all other aspects of this claim, including certification and transfer of the claims file to the Board has been accomplished by the Louisville, Kentucky VARO. The Board also notes that the veteran completed the section for total disability in his August 2000 VA Form 21-526. However, a claim for total disability rating based upon individual unemployability due to service-connected disability (TDIU) has not been adjudicated. In addition, the veteran stated in his May 2002 VA Form 9 that he has had mental anguish as a result of this injury, which was also mentioned by his wife in her March 2001 lay statement. In fact, she related that the veteran was receiving Social Security Administration (SSA) disability partly due to this mental anguish. It is unclear as to whether the veteran intended to file a claim for service connection for a psychiatric disability to include as secondary to his left testicle injury. However, both the TDIU and the psychiatric disability matters are not currently before the Board because they have not been prepared for appellate review. Accordingly, these matters are referred to the RO for appropriate action. This appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the veteran if further action is required on his part. REMAND Upon preliminary review of the claims file, the Board finds that additional development is needed in this case before proceeding with appellate review for the reasons set forth below. An initial review of the evidence reveals that the veteran's service medical records appear to be incomplete. The record indicates that the RO attempted to locate the service medical records in January 2001. The RO did receive the veteran's service medical records, however, the rating decision noted that they were "grossly incomplete", and the claim was decided by the RO without the complete service medical records. Even prior to the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), the United States Court of Appeals for Veterans Claims (Court) had held that in cases where the veteran's service medical records were unavailable, through no fault of the veteran, there was a "heightened duty" to assist the veteran in the development of the case. See generally McCormick v. Gober, 14 Vet. App. 39, 45-49 (2000); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This heightened duty to assist included the obligation to search for alternate methods of proving service connection. The Court has also held that VA regulations do not require that service connection be established by service medical records, but may be established by cognizable evidence from other medical and lay sources. Smith v. Derwinski, 2 Vet. App. 147, 148 (1992). Further, the Court has held that the "duty to assist" includes advising a claimant that, even though service records were not available, alternate proof to support the claim will be considered. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Based upon a review of the documents assembled for appellate review, the Board finds that it is unclear whether the search for service records included clinical records of hospitalization or organization morning sick reports pertaining to the veteran, as well as other alternate sources for information. In this regard, the Board notes that the veteran testified at his June 2002 personal hearing that he was injured in service in 1962 or 1963 and hospitalized for one to two weeks at a military hospital near Fontainebleau, France. This information was reiterated in a lay statement in August 2002. In particular, the statement related that the individual had served with the veteran and had visited him in a hospital in Fontainebleau, France where he was being treated for a ruptured testicle in the fall of 1962. Thus, additional efforts should be undertaken to attempt to obtain any additional service related records. Further, as noted above, the veteran appears to be in receipt of SSA disability benefits. Such records should be obtained by the RO as the veteran's spouse indicated that the veteran was in receipt of such benefits, in part, because of mental problems associated with his left testicle condition, and such records may contain some pertinent information related to the claimed left testicle injury. Therefore, in order to give the veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following actions: 1. The RO should complete the development of the evidence with regard to the missing service medical records in accordance with applicable VA procedure. This should include another attempt to secure any additional available service medical records of the veteran through official channels. These efforts should include requesting the veteran to provide the specific name of the hospital where he was hospitalized in service for the disability at issue, and if he responds, an effort to obtain the clinical inpatient records from this hospitalization. The RO should also attempt to obtain copies of any available organization morning sick reports for the 293rd Signal Company for the period between October 1962 and December 1962. If any additional information is required in order to complete this search, it should be requested from the veteran. As set forth in 38 U.S.C.A. §5103A(b)(3) and 38 C.F.R. §3.159(c)(2), the RO should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The veteran should be notified of the RO's attempts to locate his service medical records from his active duty service, as well as any further action to be taken. 2. The RO should advise the veteran that he can submit alternate evidence to support his claim for service connection, including statements from service medical personnel; statements from individuals who served with him ("buddy" certificates or affidavits); employment physical examinations; medical evidence from hospitals, clinics from which, and private physicians from whom, he may have received treatment, especially soon after discharge; letters written during service; and insurance examinations. The RO should assist the veteran in this respect, and should pursue all logical follow-up development pertaining to his claim. 3. The RO should obtain and associate with the claims file the records upon which the Social Security Administration (SSA) based its decision to award disability benefits to the veteran. If the search for the mentioned records has negative results, the claims file must be properly documented as to the unavailability of these records 4. In addition to the development requested above, the claims file should be reviewed to ensure that all VCAA notice obligations have been satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A, (West 2002), and any other applicable legal precedent. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran unless he is notified. _________________________________________________ S. L. KENNEDY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2003).