Citation Nr: 1112894 Decision Date: 04/01/11 Archive Date: 04/13/11 DOCKET NO. 07-34 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for sinusitis and seasonal allergies. 2. Entitlement to service connection for anemia. 3. Entitlement to service connection for multiple myeloma/Hodgkin's lymphoma. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1978. He also has unverified Reserve service, active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO), which denied the issues on appeal. In November 2010, the Veteran canceled his Travel Board hearing and asked that his appeal be forwarded to the Board. The Veteran is employed by VA at the Atlanta, Georgia RO. The appeal is under the jurisdiction of the same RO. 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 Veteran asserts that service connection is warranted for sinusitis and seasonal allergies, anemia, and multiple myeloma/Hodgkin's lymphoma based upon service incurrence. A review of the record reveals that the Veteran's service treatment records, except for his entrance and separation examinations, were unavailable for review. In cases where a Veteran's service treatment records are unavailable through no fault of a Veteran, there is a heightened obligation to assist the claimant in the development of his case. See O'Hare v. Derwinski, 1 Vet.App. 365 (1991); 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303(a) (2010). This heightened duty to assist includes the obligation to search for alternate methods of proving service connection. See Moore v. Derwinski, 1 Vet.App. 401 (1991). In September 2004, the Veteran was informed of documents that he could submit that can substitute for service medical records. Further, in December 2004, the RO determined that the majority of service medical records were unavailable for review. That same month, the Veteran asked that his service treatment records be sought and obtained from his last Reserve unit. Attached was DA Form 4651-R, which showed that his last unit was the 954th Personnel Svc Company, Richmond, Virginia. The information was sent to the First US Army; Attention: AFKA-RA-RS; Ft. Meade, Maryland and this was routed through the 300th Spt Gp (A); Gerow USAR Center; Ft. Lee, Virginia. In February 2005, the RO sought the Veteran's service treatment records from his last Reserve unit in Richmond, Virginia. The Post Office returned the letter indicating "Attempted Not Known." The RO advised the Veteran of this negative development in a March 2005. Similarly, in its August 2005 rating decision, the RO indicated that "all efforts" to obtain his active duty and reservist medical records had been exhausted. The Board does not concur. Rather, there is no indication that the RO attempted to obtain the Veteran's records the First US Army, Ft. Meade, Maryland or 300th Spt Gp (A), Ft. Lee, Virginia. Both units/commands were clearly listed as being in the chain of the Veteran's last Reserve unit. A search for the Veteran's records through these units should be accomplished. There is also no evidence that the RO queried either of these units to obtain the proper contact information on the 954th Personnel Svc Company. That too should be accomplished. It is important to note that in a December 2005 statement in support of his claim, the Veteran indicated that "because the law indicates when service medical records are not available, to decide a claim in the Veteran's favor." However, the Veteran must observe that the unavailability of service treatment records does not free him from the requirement that he provide evidence that he currently has a disability that is causally related to service. The presumed loss or destruction of Government records does not create an "adverse presumption" against the Government. Cromer v. Nicholson, 19 Vet. App. 215, 218 (2005); affirmed 455 F.3d 1346 (2006). As such, the Veteran is reminded that he may submit alternative documents to show that these conditions were incurred in service, as substitutes for service treatment records. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the First US Army; Attention: AFKA-RA-RS; Ft. Meade, Maryland and the 300th Spt Gp (A); Gerow USAR Center; Ft. Lee, Virginia, and ascertain whether the Veteran's service treatment records are located with either of these units, and if so, obtain those records and associate them with the claim folder. If these records cannot be located, the Veteran should be so informed and it should be so noted in the claims folder. The 300th Spt Gp (A) should also be asked, if possible to verify the Veteran's ACDUTRA, if any, and associate those records with the claim folder. If his ACDUTRA service is not verifiable, the Veteran should be so informed and it should be so noted in the claims folder. Alternately, the First US Army and 300th Spt Gp (A) should be asked to provide the appropriate contact information for the 954th Personnel Svc. With the information received, the RO should again request copies of the Veteran's service treatment records. The 954th Personnel Svc should also be asked to verify the Veteran's ACDUTRA, if any. If these records cannot be located, the Veteran should be so informed and it should be so noted in the claims folder. 2. The RO/AMC should remind the Veteran that he can submit alternate evidence to support his claims for service connection. This evidence may take the following forms: statements from service medical personnel, "buddy" certificates or affidavits, employment physical examinations, medical evidence from hospitals, clinics, and private physicians by which or by whom the Veteran may have been treated for her alleged disorders, especially soon after discharge from service, letters written during service, and insurance examination. The Veteran may submit any other evidence he deems appropriate. If he needs assistance in obtaining medical records, he should provide the RO/AMC with the names and addresses of the medical providers, and forms providing for the release of such information should be forwarded to the Veteran for his signature. 3. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are 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 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). 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. 2010). _________________________________________________ MICHAEL A. HERMAN 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).