Citation Nr: 1045103 Decision Date: 12/02/10 Archive Date: 12/10/10 DOCKET NO. 07-38 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Eligibility for Department of Veterans Affairs death benefits, to include whether the appellant is permanently incapable of self support. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for the Veteran's cause of death, and if so, entitlement to service connection for the same. ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The appellant seeks Department of Veterans Affairs (VA) death benefits as a surviving child, based upon the military service of his father (decedent). The Veteran had service in the Tennessee National Guard, the Michigan National Guard, and the U.S. Army Reserves for unverified periods of time. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the VA Regional Office (RO) in Little Rock, Arkansas, which denied entitlement to the benefits currently sought on appeal. In April 2009 the Board issued a decision which denied the appellant's claims. Thereafter the appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In April 2010 the Court issued a decision and remanded the claims for additional review and consideration by the Board. 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 The appellant claims he is entitled to recognition as a helpless child on the basis that he was permanently incapable of self support prior to attaining the age of 18. The appellant also argues that the Veteran's cause of death is service connected. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). Active military, naval and air service includes active duty, any period of on active duty for training (ACDUTRA) 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 (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 C.F.R. § 3.6(a) (2010). The Board notes that the dates of the Veteran's active duty, ACDUTRA, and INACDUTRA have not been completely verified. On the Veteran's DD 4 it states that the Veteran had active service from May 1954 to September 1955 in the Tennessee National Guard, and from November 1955 to February 1956 in the Michigan National Guard, totaling 1 year, 9 months, and 17 days. See also Veteran's DD 22. The Veteran's DD 22 also noted service again in the Tennessee National Guard from May 1956 to November 1956. The Veteran's DD 214 noted 6 months active duty training starting in November 1957. There is also a response from the National Personnel Records Center (NPRC) which shows the Veteran served from November 1961 to April 1962. However, in the January 2007 response from the NPRC it states that the Veteran's service only included ACDUTRA, and not active duty. The appellant claims there are additional dates which the Veteran served on active duty which have not yet been accounted for. As noted above, the Board observes there has not been a complete verification of the Veteran's periods of active duty service, ACDUTRA, and INACDUTRA. Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. See Cahall v. Brown, 7 Vet. App. 232, 237 (1994). The appellant claims that he became permanently incapable of self support before he turned 18 on March 6, 1996. The Board notes that the RO requested disability records from the Social Security Administration (SSA) in April 2007, but that the appellant's social security number had the second and third digits transposed. As such, the SSA's response came back with no available records pertaining to the appellant. The RO should again request these records, using the correct social security number, and associate the records with the claims file. Also, the Board notes that the Veteran was granted SSA benefits for anxiety disorders in 1974. However, the supporting medical records used to make this decision are not in the claims file. As the appellant is claiming that the Veteran's cause of death was service connected, the Board notes that the SSA records should be obtained and associated with the claims file. Finally, the Board notes that the January 2007 NPRC response stated that the Veteran's records were involved in a 1973 fire at the NPRC and could not be located. Under such circumstances, there is a heightened duty to search for medical information from alternative sources and the Board has a duty to advise the claimant to obtain other forms of evidence. See Jolly v. Derwinski, 1 Vet. App. 37 (1990), see also Dixon v. Derwinski, 3 Vet. App. 261 (1992). However, there was no notice to the appellant informing him that these records were unavailable and identifying alternative sources of evidence he could provide to help support his claims. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request a verification of service dates from the NPRC, including all dates of ACDUTRA, INACDUTRA, and active duty. The AOJ should also contact the National Guard Bureau, the U.S. Army Human Resources Command, and any other appropriate source to obtain records pertaining to the Veteran's dates of service. Efforts to obtain the foregoing records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non- existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought and this should be documented for the record. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2) (2010). 2. The AOJ should submit an additional request to the SSA, with the proper social security number of the appellant, to request records pertaining to the appellant for the timeframe before he turned 18 on March 6, 1996. Any and all efforts to obtain these records should be recorded in a written format and any negative responses should be documented for the record. 3. The AOJ should submit a request to the SSA for all records related to the Veteran's disability benefits. Any and all efforts to obtain these records should be recorded in a written format and any negative responses should be documented for the record. 4. Provide the appellant with notice that the Veteran's files were burned in a fire at the NPRC in 1973 and advise him of the alternative types of evidence that may be submitted in support of his claims. He should be given a reasonable opportunity to provide these records. 5. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the claims. If the benefits sought on appeal are not granted, the appellant should be furnished with a supplemental statement of the case and 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. 2009). _________________________________________________ L.M BARNARD Acting 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) (2010).