Citation Nr: 0333222 Decision Date: 11/26/03 Archive Date: 12/10/03 DOCKET NO. 02-19 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for residuals of an injury of the left hand. 2. Entitlement to service connection for jungle rot of the left hand. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Pitts, Counsel INTRODUCTION The veteran served on active duty from April 1946 to May 1947. It appears from his DD Form 214 that he also had active service before this period, but that service is not verified. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) at Indianapolis, Indiana. REMAND The current claims are remanded because evidence needed to decide them remains to be developed. Because, it is shown in the claims file, the National Personnel Records Center (NPRC) informed the RO that the veteran's service personnel and medical records are unavailable and presumed to have been destroyed at the fire that occurred in 1973 at that repository, it is especially important that the development requested in this Remand be undertaken. Judicial precedent applicable to fire-related cases so requires, as does the Veterans Claims Assistance Act, when the record of a claim is incomplete. The veteran maintains that he injured his left hand during service and eventually developed aching in his fingers and blisters that appear on the hand in cold winter weather. He maintains that the injury to his left hand came from reloading guns. He offered this account during the August 2001 VA examination of the hand, thumb, and fingers, the report of the examination shows. In July 2001, the RO requested the veteran's service medical and dental records from the NPRC. Later in that month, the NPRC replied to the RO that these records and the veteran's service personnel records were unavailable and presumed to have been destroyed by the fire that took place at NPRC headquarters in July 1973. The NPRC advised in its reply that the veteran, if claiming illness or injury during service, must furnish information identifying his unit, the month and year of the illness or injury, and the nature of the illness or injury so that a search for Morning Reports and sick reports could be made (to attempt to confirm the illness or injury). The NPRC stated in its reply that it would conduct such a search if given this information. In a July 2001 letter dated one day before it received the NPRC's reply, the RO advised the veteran and his representative of the elements of a service connection claim and the type of evidence that could substantiate his claims. Later, it did not send to the veteran or his representative either notice of the NPRC's July 2001 determination that his service medical and personnel records had been destroyed by fire or a request that they furnish the particular information cited by that agency. Rather, the RO denied the claims on the basis of the evidence of record that had been obtained, the VA examination reports of August 2001. The RO's actions after receiving the reply from the NPRC in July 2001 were insufficient. The RO failed to follow well- established procedures for fire-related cases. After hearing from the NPRC in July 2001, the RO should have advised - - and VA had a duty to advise - - the veteran that even though his service records could not be found, alternate forms of evidence could be submitted. See Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). After receiving the NPRC's reply, the RO should have assisted - - and VA had a duty to assist - - the veteran in obtaining such alternate evidence. See id. Thus, for example, an attempt should have been made to reconstruct the missing service medical record by seeking records directly from the facilities that the veteran reported treated him during service. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). The Board notes that in his June 2001 VA Form 21-526, Application for Compensation, the veteran gave information about where he had been treated during service for the conditions in concern. He named two military hospitals in the United States at which he had been treated (and at one, he also stated, given his separation examination) and also said without naming the facility or other provider that he had been treated in Kyoto, Japan. Also, in his original formal claim, which he submitted in April 1986, he named two facilities where he said he had been treated for the conditions in concern. However, the record does not indicate that the RO tried to obtain medical records directly from the facilities named or to learn from the veteran the identity of the facility in Kyoto, Japan where he may have been treated. The Department of Veterans Affairs Adjudication Procedure Manual provides that alternate sources of evidence should be resorted to in fire-related cases. See VA Adjudication Procedure Manual, M21-1, Part III, Paragraphs 4.23, 4.25, 4.29 (Change 88, February 27, 2002). A "partial list" of "alternate documents that might substitute for service medical records" is set forth in M21-1: VA military files; statements from service medical personnel; "buddy" certificates of affidavits; state or local accident and police reports; employment physical examinations; medical evidence from hospitals, clinics, and private physicians by which or by whom a veteran may have been treated, especially soon after separation; letters written during service; photographs taken during service; pharmacy prescription records; and insurance examinations. VA Adjudication Procedure Manual, M21-1, Part III, Paragraph 4.25. NA Form 13055, Request for Information Needed to Reconstruct Medical Data (Form 13055) should be given to the claimant for completion and return to the RO. VA Adjudication Procedure Manual, M21-1, Part III, Paragraph 4.23. However, the record does not indicate that the RO advised the veteran and his representative of these or other alternate forms of evidence and requested that they identify any. The record does not indicate that the RO asked the veteran to complete NA Form 13055. Indeed, although in the VA Form 21- 526, Application for Compensation, that he submitted in April 1986, the veteran reported that he had been treated for jungle rot soon after his separation from service ("after discharge [in] 1947") by a certain private physician, Dr. James W., the record does not show that the RO ever tried to obtain records from Dr. W. or, if those records had been deemed unavailable, other documentation of the treatment described by the veteran. Concerning cases in which service records are unavailable, it is stated in M21-1: "Only when the service department indicates that all efforts to locate the [service] records have been exhausted and the request to the claimant does not result in receipt of other evidence can the case be routed to the rating activity for final rating action." VA Adjudication Procedure Manual, M21-1, Part III, Paragraph 4.29. By this standard, the RO's April 2002 rating decision denying the claims was premature. Accordingly, the claims must be remanded for the RO to carry out the required development of evidence. The RO must complete the development of evidence that could show that the veteran injured his left hand during service reloading guns, as he has represented; that he was treated during service for both a left hand injury and for jungle rot of the left hand at the military facilities in the United States that he names in one or both of his formal claims, those of April 1986 and June 2001, and in Kyoto, Japan; and that he was treated in 1947 after his separation from service in that year by a private physician, Dr. James W., for jungle rot of the left hand, as he has represented. The Board notes that evidence corroborating the assertions of the veteran concerning injury and treatment during service appears to be needed because the record assembled so far does not show that he is a combat veteran. For example, the decorations and awards listed on his DD-214 are not any that VA accepts as indicative of combat service. See VA Adjudication Procedure Manual, M21-1, Part III, Paragraph 5.14 (Change 105, August 12, 2003). Therefore, unless development of evidence on remand shows that he is a veteran of "combat with the enemy" during which he could have sustained the alleged injury, or developed jungle rot, of his left hand, his own word will not be sufficient to prove that he did sustain the injury or incur the disease during service. Cf. 38 U.S.C.A. § 1154(b) (West 2002), 38 C.F.R. § 3.304(d) (2003), VAOPGCPREC 12-99 (October 18, 1999). In this regard, the Board notes that in his June 2001 VA Form 21-526, Application for Compensation, the veteran averred that his left hand injury happened during his service in 1945 (between July and September). This service is not verified by the record as it currently stands. There is no indication in the record that the RO asked the veteran to complete NA Form 13055, Request for Information Needed to Reconstruct Medical Data (Form 13055) or followed other procedures for verifying service set forth in M21-1. On remand, the RO must take all action necessary to verify a period of active service by the veteran that includes the year 1945. In addition to judicial precedent and established VA adjudication policy that must be adhered to in fire-related cases, the Veterans Claims Assistance Act of 2000 also requires that the record of these claims be developed. See 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002) (the VCAA). The VCAA, enacted on November 9, 2000, charges VA with a heightened duty to provide certain assistance and notice to claimants of VA benefits. See 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002). It is thus more favorable to claimants than was the former law. New regulations have been promulgated implementing the new statute and, with the exception of certain provisions concerning applications to reopen previously denied claims, are effective from the date of the statute's enactment. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003)). As the claims were pending when the VCAA was enacted, they must be developed and adjudicated within the framework established by this new law. Recent judicial decisions have mandated that VA ensure strict compliance with the provisions of the VCAA. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003). The VCAA requires VA to make reasonable efforts to obtain records pertinent to a claim for benefits, and if the records could not be secured, to so notify the claimant. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1)-(3). When records needed to decide a claim for VA benefits are in the custody of a federal department or agency, VA must continue to try to obtain them until it has been successful unless it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 38 U.S.C. A. § 5103A; 38 C.F.R. § 3.159(c)(2). The implementing regulation prescribes the content of the notice that VA should give to a claimant if it is unable to obtain records pertinent to the claim. 38 C.F.R. § 3.159(e). In undertaking the development of documentary evidence on remand, the RO must observe these provisions. As discussed above, service medical records or substitutes for them and post-service medical records, particularly those dated soon after the time of the veteran's separation from service, are needed to substantiate the claims. The Board notes that post-service medical records dated within one year after his separation from service showing arthritis of the left hand are needed before service connection for that condition, if not shown in service, could be established on the presumption that the veteran had the condition during service. See 38 C.F.R. §§ 3.307, 3.309 (2003). Furthermore, the VCAA requires that claimants be provided with certain notice concerning the status of their claims. Under the VCAA, VA must notify the claimant and the claimant's representative, if any, of any information and any medical and lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b). The notice must indicate which evidence the claimant is finally responsible for obtaining and which evidence VA will attempt to obtain on the claimant's behalf. Id.; Quartuccio. The notice must clearly indicate that the claimant has one year from the date of the notice in which to identify or submit evidence in support of the claim. 38 U.S.C.A. § 5103; see Disabled American Veterans, 327 F.3d at 1348, 1353; Paralyzed Veterans of America (declaring 38 C.F.R. § 3.159(b)(1) inconsistent with the statute, and therefore invalid, insofar as it provides for adjudication of the claim if the claimant has not responded to the notice within 30 days). On remand, the RO should assure that notice complying with the VCAA is given to the veteran. Such notice necessarily must contain the advice and information cited by judicial precedent and VA Adjudication Manual, M21-1. The Board notes that neither of the August 2001 VA examination reports included an opinion as to whether the condition in concern was causally related to an injury or disease sustained in service. For this reason alone, the examination reports are not sufficient to resolve the claims. However, whether a new VA examination is warranted for either claim will depend on whether evidence developed on remand shows the incidence during service of a pertinent injury or disease (or supports a presumption that had arthritis of the left hand during service). Under the VCAA, VA has a duty to secure a medical examination or opinion if such is necessary to decide a claim for benefits. 38 U.S.C.A. § 5103(A)(d)(1); 38 C.F.R. § 3.159(c)(4). Under the VCAA, a need for a medical examination or opinion in the decision of the claim is considered to exist "if the evidence of record before the Secretary, taking into consideration all information and lay or medical evidence (including statements of the claimant) . . ." (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (C) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2); see also 38 C.F.R. § 3.159(c)(4)(i). The August 2001 VA examination reports confirm disability of the left hand, degenerative arthritis, and may suggest that the veteran has a symptom of a skin disability of the left hand - - at this stage, and considering that development and notice have been insufficient thus far, the Board will resolve this point in favor of the claimant. 38 C.F.R. § 3.102 (2003). After completing all other development of evidence on remand, the RO must decide whether a new VA examination is warranted for either claim under the VCAA. Accordingly, this case is REMANDED for the following actions: 1. Provide the veteran with notice concerning the kind of evidence or other information that is required to substantiate each of the claims. The notice must contain all information and advice required in fire-related cases by M21-1, Part III, and by applicable judicial precedent. Thus, the notice must be accompanied by NA Form 13055, Request for Information Needed to Reconstruct Medical Data, and NA Form 13075, Questionnaire About Military Service, and must contain a request that the veteran complete and return these forms. The notice must inform the veteran that he has one year from its date in which to identify or submit such material and must comply with section 5103 of the VCAA in all other respects, see 38 U.S.C.A. § 5103 (West 2002), 38 C.F.R. § 3.159(b) (2003), and satisfy the holdings of Quartuccio v. Principi, 16 Vet. App. 183 (2002), Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), and Paralyzed Veterans of America, et. al. v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003), as well as any controlling legal guidance issued after the date of this Board decision. 2. After receiving his completed NA Form 13075, Questionnaire About Military Service, attempt to obtain documentary evidence verifying or confirming that the veteran had active service during a period that included the year 1945, particularly July-September 1945. Follow all procedures dictated by M21-1, Part III, and all requirements of the VCAA. Efforts to secure service records should continue until it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. Document in the claims file the actions taken to secure this evidence and provide appropriate notice to the veteran and his representative regarding records or other documents that could not be obtained. Associate with the claims file all records or other documents obtained. 3. After receiving his completed NA Form 13055, Request for Information Needed to Reconstruct Medical Data, attempt to obtain documentary evidence confirming that the veteran injured his left hand during service in 1945, developed jungle rot of his left hand in 1947, and was treated at the military facilities identified in his April 1986 and June 2001 VA Forms 21-526, Application for Compensation and at a facility or by a provider in Kyoto, Japan. Document in the claims file the actions taken to secure this evidence and provide appropriate notice to the veteran and his representative regarding records or other documents that could not be obtained. Associate with the claims file all records or other documents obtained. 4. In the notice referred to in Paragraph 1 or separately, write to the veteran and ask him to identify all post- service treatment that he has received for the claimed conditions. Regardless of whether he responds, attempt to obtain treatment records prepared by the physician, Dr. James W., whom the veteran named in his April 1986 VA Form 21-526, Application for Compensation. Document in the claims file the actions taken to secure this evidence and provide appropriate notice to the veteran and his representative regarding records or other documents that could not be obtained. Associate with the claims file all records obtained. 5. Review the claims file and ensure that all development action required by the VCAA in addition to that requested above is completed for each of the claims. 6. Then, readjudicate the claims. If a claim is not granted, the veteran should be issued a supplemental statement of the case. The supplemental statement of the case should contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the claim. The veteran and his representative then should be given appropriate time in which to respond. Then, if appellate review is required, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 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 2002) (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. 8.43 and 38.02. ______________________________________________ BARBARA B. COPELAND 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) (2003).