Citation Nr: 0813974 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 99-12 576 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law WITNESSES AT HEARINGS ON APPEAL The appellant and his mother ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The appellant served on active duty from April 1987 to August 1988. He also had a period of active duty for training (ACDUTRA) from April 12 to July 14, 1992. In February 1999, the RO declined to reopen the appellant's previously denied claim for service connection for diabetes mellitus. He appealed to the Board of Veterans' Appeals (Board). In August 2000, the Board remanded the appellant's case in order to afford him a Board hearing at the RO. He subsequently withdrew his request for the hearing, and the case was returned to the Board in July 2002. In September 2002, the Board found that new and material evidence had been received to reopen the appellant's claim. The Board ordered internal development with respect to the underlying merits of the claim, and additional evidence was received. However, in May 2003 the United States Court of Appeals for the Federal Circuit invalidated the regulation that had permitted the Board to obtain and review new evidence without obtaining a waiver from the appellant. Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Accordingly, in September 2003, the Board again remanded the claim. The case was returned to the Board in June 2005, and the appellant testified at a hearing held before the undersigned Veterans Law Judge in Washington, D.C. in September 2005. In November 2005, the Board denied the appellant's claim on the merits. The Board also denied a subsequent motion for reconsideration. The appellant appealed the Board's November 2005 decision to the United States Court of Appeals for Veterans Claims (Court). In March 2007, the parties to the appeal filed a joint motion asking the Court to vacate and remand the Board's decision. The Court granted the motion in April 2007. In July 2007, the Board remanded the case for additional development. The RO confirmed the prior denial, and the case was returned to the Board in March 2008. The matter is now presented for further appellate consideration. For the reasons set forth below, this appeal is again being REMANDED for additional development. VA will notify the appellant if further action is required on his part. REMAND When this case was remanded in July 2007, the Board requested, among other things, that a thorough search be conducted for any additional service medical records for the appellant that might exist including, but not limited to, any narrative that might have been associated with a November 1992 Medical Evaluation Board (MEB) report and records pertaining to the appellant's apparent referral to a Physical Evaluation Board (PEB). Consistent with the law, the Board instructed that efforts to obtain the evidence should be discontinued only if it could be concluded that the evidence sought did not exist or that further efforts to obtain the evidence would be futile. See 38 C.F.R. § 3.159(c)(2). Unfortunately, the requested development has not been completed. The record shows that the RO contacted the National Personnel Records Center (NPRC) in an effort to obtain additional service medical records. In reply, the NPRC indicated, in effect, that the records sought were not located among its holdings and that further efforts to locate them at that facility would be futile. However, the NPRC also indicated that the record needed to respond to the RO's request "was charged out on 4/14/05 and has not been returned to file." That statement suggests that the NPRC might have additional information as to the location of the requested records (e.g., the identity of the person or facility to whom the records were released on 4/14/05). The record on appeal also suggests another possible source of the evidence sought, inasmuch as it shows that the service department (i.e., the Army Review Boards Agency) gathered evidence in 1996 in connection an application for correction filed by the appellant in 1994 wherein he asserted, among other things, that an error existed "in the PEB's finding that my condition (diabetes) was pre-existing." (Emphasis added.) Under the circumstances, the Board is not persuaded that all reasonable efforts to obtain the evidence have been exhausted. The Court has held that a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, additionally, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Given the Court's holdings on the matter, and the fact that the development sought in this case has not been fully completed, the Board has no choice but to return this matter to the agency of original jurisdiction. A remand is required. 38 C.F.R. § 19.9. The RO has made two unsuccessful attempts to obtain additional records from the appellant's private physician, David A. Escalante, M.D.; most recently in October 2007. Under the law, if VA makes reasonable efforts to obtain relevant non-Federal records, but is unable to obtain them, it is required to provide the claimant notice that includes the identity of the records VA was unable to obtain; an explanation of the efforts VA made to obtain the records; a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and notice that the claimant is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e)(1). Here, that has not been done. Corrective action is required. For the reasons stated, this case is REMANDED for the following actions: 1. Notify the appellant that VA has been unable to obtain complete records of treatment from Dr. Escalante, as identified in the releases he has provided. As part of the notice, provide an explanation of the efforts VA has made to obtain the records, a description of any further action VA will take regarding his claim for service connection (including, but not limited to, notifying him that VA will decide the claim based on the evidence of record unless he submits the records VA was unable to obtain), and notice that he is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e)(1). 2. Contact NPRC and ask it to clarify its response to the RO's requests for additional service medical records. Specifically, NPRC should be asked to indicate whether any of the appellant's service medical records, including any MEB or PEB reports, or parts thereof, may have been among the records "charged out on 4/14/05" and, if so, to provide any information it may have as to the identity of the person or facility to whom the records were released. 3. If NPRC indicates that any of the appellant's service medical records, including any MEB or PEB reports, or parts thereof, may have been among the records "charged out on 4/14/05," and if NPRC is able to provide information as to the identity of the person or facility to whom the records were released, make efforts to obtain the records from the recipient identified. 4. Ask the Army Board for Correction of Military Records to provide copies of any records in its possession pertaining to the appellant's Application for Correction of Military Record, dated in 1994. The materials obtained should be associated with the claims file. 5. All efforts to obtain the evidence in question should be fully documented in the claims file. Efforts should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The information and evidence obtained, if any, must be associated with the record on appeal. 6. After the foregoing development has been completed, take adjudicatory action on the claim here in question. If the benefit sought remains denied, furnish a supplemental statement of the case (SSOC) to the appellant and his representative. After the appellant and his representative have been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. No action is required by the appellant until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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 this appeal. 38 C.F.R. § 20.1100(b) (2007).