Citation Nr: 0814011 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 05-19 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for polychondritis. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Willett, Associate Counsel INTRODUCTION The veteran had active service from June 1962 through June 1965, and from November 1990 through June 1991, with additional periods of Army National Guard service that have not yet been verified. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. 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 is seeking to establish service connection for polychondritis. VA has several duties under 38 C.F.R. § 3.159 to notify and assist the veteran with regard to his claim. Included among those duties is the duty to assist the veteran to obtain evidence relevant to his claim. See 38 C.F.R. § 3.159(c) (2007). The veteran's claims folder contains service medical records from his service in the National Guard, but no verification of his National Guard service dates, including verification of periods of active duty, active duty for training (ACDUTRA), and inactive duty for training (INACDUTRA). There is on DD Form 214 showing active duty between November 1990 and June 1991, but no other service dates are verified. There are several periodic medical examinations showing that the veteran was in the National Guard sometime after 1991, but no verification of service. This information is relevant and, in fact, essential to the proper adjudication of this claim. Entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Active military, naval and air service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 C.F.R. § 3.6. Thus, it is imperative that the Board know the periods of the veteran's National Guard active duty, ACDUTRA and INACDUTRA, so that a determination can be made as to whether his polychondritis was incurred during his active service. It is reasonable to believe that this information is a matter of record, and at least in the records of the Oklahoma Army National Guard. VA has an obligation under 38 C.F.R. § 3.159(c)(2), (3) to pursue this information until a responsible custodian of such records reports that they are unavailable, or VA can reasonably conclude that any further effort to obtain them would be futile. National Guard records are maintained by the personnel office of the Service National Guard Center where the veteran served. An alternative source for this information is the National Personnel Records Center (NPRC). See Veterans Benefits Administration (VBA) Adjudication Procedure Manual M-21-1, Part III, Ch. 4, § 4.01(b)(1)(c), Change 131 (February 25, 2005). As such, additional development is necessary, as this matter is not ready for final adjudication. Also, to date, VA has not afforded the veteran a VA examination with regard to his claim. VA will provide a medical examination if it determines that such an examination is necessary to decide the claim. A medical examination is necessary if the evidence of record does not contain sufficient competent medical evidence to decide the claim, but does contain evidence of a current disability or recurrent symptoms of a disability, evidence of an event, injury or disease in service, and indications that the current disability may be associated with the injury in service. 38 C.F.R. § 3.159(c)(4) (2007). In this case, the veteran contends that his symptoms of redness in his eye and trouble with his ear began shortly after his return from service in the Persian Gulf. See October 2006 hearing transcript at pages 6-7. And, an October 1991 medical report shows complaints of redness, pain and swelling in the eye. Also, both a private physician in September 1997, and a physician's assistant in March 2006, suggested that the veteran's polychondritis may have manifested in service, albeit without any medical basis explained to warrant service connection at this time. There is, however, clear evidence of a current polychondritis diagnosis, coupled with evidence that the disease may have manifested shortly after his period of service in the Persian Gulf, and statements suggesting possible service connection. Thus, an examination by a specialist in this area of medicine is clearly warranted under 38 C.F.R. § 3.159(c)(4) (2007). Accordingly, the case is REMANDED for the following action: 1. Verify the veteran's National Guard service dates, including verification of all dates of active duty, ACDUTRA, and INACDUTRA, from the Service National Guard Center where the veteran served, by the National Personnel Records Center (NPRC) in St. Louis, Missouri, or through other official channels, as necessary. Document all efforts made in connection with this request. 2. Once the above development is complete, afford the veteran a VA examination with an appropriate specialist that can examine his polychondritis symptoms and render a thorough opinion based upon a review of the entire claims folder and a physical examination. The examiner is asked to review the claims folder and following thorough physical examination, document any current diagnosis of polychondritis and render an opinion as to the etiology of this disease. The examiner should provide such an opinion by addressing the following question: is it more likely than not (i.e., probability greater than 50 percent)), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the veteran's polychondritis was caused by disease or injury during service, including during any period of active duty, ACDUTRA, or INACDUTRA? A complete rationale should be provided for any opinion expressed. 3. Readjudicate the veteran's claim. If the benefits sought on appeal remain denied, the veteran and his accredited representative should be issued a supplemental statement of the case (SSOC) and given a reasonable opportunity to respond. The veteran has the right to submit additional evidence and argument on the matter 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. 2007). _________________________________________________ MARJORIE A. AUER 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) (2007).