Citation Nr: 0113863 Decision Date: 05/17/01 Archive Date: 05/23/01 DOCKET NO. 00-23 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for residuals of a left thumb injury. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD David Odlum, Associate Counsel INTRODUCTION The veteran had active military service from September 1986 to January 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 1999 rating decision from the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO). REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other things, this law eliminates the concept of a well- grounded claim, redefines the obligations of VA with respect to the duty to assist, and supercedes the decision of the Court in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA, Pub. L. No. 106-475, § 7, 114 Stat. 2096, 2099- 2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Because of the change in the law brought about by the VCAA, a remand in this case is required for compliance with the notice and duty to assist provisions contained in the new law. See VCAA, Pub. L. No. 106-475, §§ 3-4, 114 Stat. 2096, 2096-2099 (2000) (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107). The Board initially notes that the veteran is claiming service connection for residuals of a left thumb injury secondary to surgery performed while he was in the service. A VA examiner appeared to link his current residuals to this inservice injury/surgery, and the veteran's statements that his enlistment was extended to determine his entitlement to military disability pay based on this injury is corroborated by the DD Form 214 which notes that his enlistment was extended in September 1990. However, the DD Form 214 does not specify why the enlistment was extended, and there are no service medical records on file. In addition, there is a large gap in time between the veteran's discharge and the first record of treatment of his left thumb disability. The RO diligently has attempted to locate the service medical records without success. It received negative responses from the National Personnel Records Center (NPRC) and the VA Records Management Center (RMC). The RO also indicated that it had been unable to obtain the records from the Service Medical Records Center (SMRC). It is unclear as to whether a response was received from this facility; however, it appears that the SMRC has been combined as part of the RMC. See M21- 1, Part III, Addendum C. A request was also sent to the Letterman Army Hospital, but it does not appear that a response was given. In light of the VCAA, the Board is of the opinion that the RO should attempt to determine whether the veteran's records are located at this facility. VCAA, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified at 38 U.S.C. § 5103A(b)). The Board notes that the veteran served in the Coast Guard. VBA's Adjudication Procedure Manual, M21-1, Part III, specifies that records from the Coast Guard are first assembled at the separation point, which in this case was the United States Coast Guard Station at Siuslaw River. M21-1, Part III, para. 4.01(g)(1). If the veteran no longer has a Reserve obligation or any other Reserve connection, the records are then forwarded to address code 51 which is listed as Commander, U.S. Coast Guard Personnel Command, CGHQ (adm-3), Washington, DC 20593- 0001. M21-1, Part III, para. 4.01(g)(5), Addendums A and C. In this case it appears that the veteran had a Reserve obligation, but there is no indication that he currently has a Reserve obligation. Therefore, the above paragraph would appear to apply. Once records are sent to address code 51, the records are generally forwarded to NPRC shortly thereafter. Id. However, it is also specified that, due to delays in forwarding, the records may not be where they are supposed to be. M21-1, Part III, para. 4.01(g)(7). Therefore, it is possible that the veteran's records may be at address code 51 or even at the separation point. There is no indication in the record that a request for the veteran's service medical records was ever sent to the separation point (USCG Station Siuslaw River) or the U.S. Coast Guard Personnel Command (address code 51). On remand, the RO should attempt to obtain records from these facilities. VCAA, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified at 38 U.S.C. § 5103A(b)). In addition, the record indicates that the veteran requested a hearing but later withdrew it; however, in the October 2000 substantive appeal, the veteran's representative specifically referred to an "informal hearing" conducted by the RO during which the case was discussed. There does not appear to be a record of this "informal hearing" on file. On remand, the RO should associate the informal hearing with the claims file. On remand, the RO should also consider whether any additional notification or development action is required under the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Accordingly, this case is remanded for the following: 1. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers, VA and non-VA, inpatient and outpatient, who may possess additional records pertinent to his claim. VCAA, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified at 38 U.S.C. § 5103A(b)); Kutscherousky v. West, 12 Vet. App. 369 (1999). After securing any necessary authorization or medical releases, the RO should make reasonable efforts to obtain legible copies of the veteran's complete treatment records from all sources adequately identified whose records have not previously been secured. VCAA, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified at 38 U.S.C. § 5103A(b), (c)). Regardless of the veteran's response, the RO should secure all outstanding VA treatment reports. All information which is not duplicative of evidence already received should be associated with the claims file. 2. The RO should make another attempt to secure the veteran's service medical records through official channels. Specifically, the RO should send another request to Letterman Army Hospital, and ensure that any response is associated with the claims file. The RO should also send requests for the veteran's service medical records to the United States Coast Guard Station at Siuslaw River (the separation point), and to the Commander, U.S. Coast Guard Personnel Command (address code 51). See M21-1, Part III, 4.01g. The RO should take any appropriate action suggested by the facilities mentioned above in the event that they cannot provide the information requested. The Board notes that efforts to obtain any records from a Federal department or agency shall 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. VCAA, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified at 38 U.S.C. § 5103A). 3. The RO should attempt to associate any report of an "informal hearing," as specified in the October 2000 substantive appeal, with the claim file. 4. If the RO is unable to obtain any of the relevant records sought, it shall notify the veteran that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim. VCAA, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified at 38 U.S.C. § 5103A(b)(2)). In addition, if unable to locate the veteran's service medical records, the RO should also advise the veteran of alternative or collateral information that might substitute for service medical records with respect to his claimed disability. See M21-1, Part III, para. 4.25. 5. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed, and if it has not, the RO should implement corrective procedures. The Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). In addition, the RO must review the claims file to ensure that any other notification and development action required by the VCAA, Pub. L. No. 106-475 is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107) are fully complied with and satisfied. 6. After undertaking any necessary development in addition to that specified above, the RO should readjudicate the issue of service connection for residuals of a left thumb injury. If the benefit requested on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations pertinent to the issue currently on appeal. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a decision of the Board is appealable to the Court. 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) (2000).