Citation Nr: 0817052 Decision Date: 05/23/08 Archive Date: 06/04/08 DOCKET NO. 05-34 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a bilateral knee injury. 4. Entitlement to service connection for a bilateral thigh condition. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Heneks, Associate Counsel INTRODUCTION The veteran served on active duty from March 1961 to April 1965. Additionally, it appears that the veteran had service in the Army National Guard from approximately July 1975 to September 1985 and in the Air National Guard from September 1985 to 1995. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefit sought on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As noted above, the veteran had active duty service from March 1961 to April 1965 and a period of service in the Army National Guard from approximately July 1975 to September 1985 and in the Air National Guard from September 1985 to 1995. The veteran's service medical records from his active duty service from March 1961 to April 1965 and his service in the Air National Guard from September 1985 to 1995 are of record. However, his service medical records from his service in the Army National Guard are not of record. In this regard, the Board notes the October 2004 formal finding on the unavailability of service records which documented the attempts made to obtain these records. It was noted that the Alabama Army National Guard was contacted in September 2004 which stated that the records should have gone to the National Personal Records Center (NPRC). They clarified that there was no record of the records physically going there but they stated that this was their policy. In September 2004, the RO contacted the NPRC and they responded that the records could not be identified based on the information furnished. However, a January 2005 deferred rating decision stated that the Alabama Adjutant Generals Office should be contacted to ascertain if they had personnel or service medical records for the veteran for his service from July 16, 1975, to September 13, 1985 from the Alabama Army National Guard 711th Signal Battalion. It also clarified that the veteran was an enlisted man. There is no documentation in the claims folder that the Alabama Adjutant Generals Office was contacted. The M21-1MR, Part III, Subpart iii noted that Army National Guard records are generally located at the appropriate State Adjutants General Office. Further, the Adjutants General Office does not have the service medical records, the documents may be located within the veteran's unit, NPRC and/or the RMC, or the state's Transition Assistance Advisor (TAA). Therefore, as efforts have not been undertaken to obtain the veteran's Army National Guard records at potential locations such as the Alabama Adjutants General Office, a remand is necessary. Further, the Board also notes that the veteran's periods of ACDUTRA and INACDUTRA with either the Army or Air National Guard have not been identified. In this regard, the Board notes that service connection may be established for a disability on a direct basis where a current disability exists and that disability resulted from a disease or injury incurred or aggravated in line of duty in "the active military, naval, or air service . . . ." 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. "The term 'active military, naval, or air service' includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24). As such, on remand efforts should be undertaken to identify the periods of ACDUTRA and INACDUTRA. Additionally, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. In the present appeal, the veteran was not provided with notice of the type of evidence necessary to establish a disability rating or an effective date. As those questions are involved in the present appeal and the case is already being remanded for further development, the RO should provide the appellant with a proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the type of evidence that is needed to establish a disability rating and an effective date. The Board also notes that the veteran was also denied entitlement to service connection for a bilateral knee injury and a bilateral thigh condition in the January 2005 RO decision. The record reflected that the veteran filed a notice of disagreement (NOD) in January 2005 with regard to these issues as well as those currently on appeal. When there has been an adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case (SOC). See 38 C.F.R. § 19.26. Thus, a remand for issuance of an SOC on the issues of entitlement to service connection for a bilateral knee injury and a bilateral thigh condition is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). However, these issues will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. Provide the veteran a copy of the Dingess/Hartman (2006) notice information. 2. Contact the Alabama Adjutant Generals Office to ascertain if they had personnel or service medical records for the veteran for his service from July 16, 1975, to September 13, 1985 from his service in the Alabama Army National Guard 711th Signal Battalion as an enlisted man. If the Alabama Adjutants General Office does not have the service medical records, follow the procedures for locating them pursuant to the M21-1R or other appropriate authority which might include contacting the veteran's unit, NPRC and/or the RMC, or the state's Transition Assistance Advisor (TAA). 3. The RO must verify what periods of the veteran's Army National Guard service from 1975 to 1985 and Air National Guard service from 1985 to 1995 constituted active or inactive duty for training under sections 316, 502, 503, 504, or 505 of title 32. 38 U.S.C.A. § 101(22)(C), (23)(C). 4. An SOC, containing all applicable laws and regulations, on the issues of entitlement to service connection for a bilateral knee injury and a bilateral thigh condition must be issued. Manlincon, 12 Vet. App. 238. The veteran should be advised of the time period in which to perfect his appeal. Only if the veteran's appeal as to either issue is perfected within the applicable time period, then such should return to the Board for appellate review. 5. If the claims for entitlement to service connection for bilateral hearing loss and tinnitus are not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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). 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. 2007). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2007).