Citation Nr: 0631752 Decision Date: 10/12/06 Archive Date: 10/16/06 DOCKET NO. 97-24 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for residuals of back injury. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Michelle L. Nelsen, Counsel INTRODUCTION The veteran had active service from September 1973 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The case returns to the Board following remands to the RO in July 1998 and January 2004. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND In the January 2004 remand, the Board instructed the RO to request from the National Personnel Records Center (NPRC) the veteran's service medical records, service personnel records, and any line of duty determinations for his period of service from September 1973 to June 1978, as well as for his period of National Guard service from June 1978 to June 1980. The request was to include a completed NA Form 13042, Request for Information Needed to Locate Medical Records, and NA Form 13075, Questionnaire About Military Service. In letters dated in May 2004 and July 2005, the RO asked the veteran to complete and return the NA Forms 13042 and 13075. It did not receive a reply to either request. However, review of the claims folder reveals that the veteran previously completed each form in 1996. There is no indication that the RO requested information from the NPRC utilizing the existing completed forms. The record shows that the RO issued a request for records to the NPRC in February 2005. However, in March 2005, the NPRC responded that it was unable to identify a record based on the information furnished, indicating that the veteran's service number was not provided. The RO then issued a new request with the veteran's service number later in March 2005, although for only some of the records originally requested. No response was received. In July 2005, the RO again another request to the NPRC for complete records as instructed. Review of the request reveals that it again was missing the veteran's service number. The February 2006 reply from the NPRC indicated that it was unable to identify the record based on the information furnished. It also referred the RO to the appropriate state to secure the veteran's National Guard records. There is no indication that the RO followed up as recommended to obtain National Guard records. VA is required to obtain the veteran's service medical records or other relevant service records held or maintained by a government entity. 38 U.S.C.A. § 5103A(c) (West 2002). Whenever VA attempts to obtain records from a Federal department or agency, the efforts to obtain those records must continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. 38 U.S.C.A. § 5103A(b)(3). Moreover, a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders, and failure to ensure compliance constitutes error and warrants the vacating of a subsequent Board decision. Stegall v. West, 11 Vet. App. 268, 271 (1998). Given the above discussion, the Board cannot conclude that the RO has properly sought to secure the veteran's service medical records or complied with previous remand instructions. Despite the additional delay that will result, the Board finds that a remand is required. The Board emphasizes, however, that, if successful, additional attempts to locate the veteran's service medical and service personnel records may provide the basis to grant his claim. Accordingly, the case is REMANDED for the following action: 1. Submit a request to the NPRC to conduct an additional search for all of the veteran's service medical records, as well as any available service personnel records, including line of duty determinations and reports of investigation related to his alleged in- service back injury. The request must include the veteran's service number, as well as all other necessary information, and the NA Form 13042, Request for Information Needed to Locate Medical Records, and NA Form 13075, Questionnaire About Military Service, which the veteran completed in 1996 and are currently associated with the record. Follow up on this request as required by law and maintain thorough documentation in the claims folder. 2. Submit a request to the appropriate state office for all medical and personnel records associated with the veteran's period of National Guard service from June 1978 to June 1980. Follow up on this request as required by law and maintain thorough documentation in the claims folder. 3. Ensure proper completion of this development, then readjudicate the claim on appeal. If the claim remains denied, furnish the veteran and his representative a supplemental statement of the case and afford the applicable opportunity to respond. Thereafter, the case should be returned to the Board for final appellate review, if in order. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ JOAQUIN AGUAYO-PERELES 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) (2005).