Citation Nr: 1018352 Decision Date: 05/18/10 Archive Date: 06/04/10 DOCKET NO. 08-21 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to non-service connected pension. 2. Entitlement to an acquired psychiatric disorder, to include schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The appellant had service in the Naval Reserves from March 1991 to February 1999. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of May 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, TX. A hearing in front of the undersigned Acting Veterans Law Judge was held in March 2010. A transcript of the hearing has been associated with the claim file. 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 After a careful review of the evidence of record, the Board finds that the evidence as it stands is insufficient to decide the issues on appeal. The appellant is seeking nonservice connected pension and service connection for schizophrenia. Veterans are entitled to VA nonservice-connected pension benefits if they are permanently and totally disabled from a nonservice-connected disability which is not the result of willful misconduct, provided that they have the requisite service. 38 U.S.C.A. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b) (2008). A veteran meets the necessary service requirements if he served in active military, naval, or air service under one of the following conditions: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a). The term "veteran" is defined as a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable. 38 U.S.C.A. § 101(2). Active military, naval, or air service includes active duty, any period of active duty for training (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 inactive duty training (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(a) (2009). In turn, "active duty" is defined as service in the Armed Forces. 38 C.F.R. § 3.6(a), (b). The "Armed Forces" consist of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. § 3.1(a), (b). Importantly, only service department records can establish if and when a person has qualifying active service. Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994). The service department's findings are binding and conclusive upon VA. VA does not have the authority to alter the findings of the service department. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). If a claimant does not submit evidence of military service, or the information is insufficient, VA must request the information from the service department. Sarmiento v. Brown, 7 Vet. App. 80, 82 (1994); see also Laruan v. West, 11 Vet. App. 80, 82 (1998) (observing that if there is reason to believe that information provided to service department was erroneous (e.g., misspelled name), VA may be required to resubmit request for information to service department.) The Board notes that service personnel records show that the appellant enlisted in the Naval Reserve in March 1991 for a period of 8 years. Additional personnel records show the appellant was placed on drill pay status upon enlistment in March 1991. Service treatment records show an entry in June 1991 which noted the appellant was qualified for ACDUTRA. An entry of January 1992 shows the appellant was found to be physically qualified to be released from ACDUTRA. At the hearing of March 2010, the appellant's representative stated that the appellant had periods of active duty from March 1991 through July 1991 at the Weapons Station Concord, in New Orleans from July 1991 to August 1991, in Concord from August 1991 to January 1992, and then at Concord through February 1993. A review of the claim file shows there is nothing in the records which confirms the dates of active service provided by the representative during the hearing. However, considering the type of enlistment, drill pay status, and the STRs which show the appellant went on ACDUTRA, the Board finds that it is entirely possible and most likely, that the appellant had periods of ACDUTRA during her Naval Reserve time. On remand, the RO must obtain an answer from the NPRC, or any other appropriate agency of the USNR, as to whether the appellant had any periods of ACDUTRA or INACDUTRA from March 1991 to February 1999. The Board is aware that the RO has previously requested confirmation of periods of active duty, however, they have not asked for confirmation of any periods of ACDUTRA. Moreover, at the hearing, the appellant testified that she applied for Social Security Administration (SSA) disability. In addition, a June 2000 letter shows that the appellant has been awarded SSA disability. At the hearing, the appellant testified that the SSA records were relevant to her service connection claim. However, the SSA records have not been associated with the claim file. As they are possibly relevant to the appellant's claim, an attempt should be made to obtain such records. 38 C.F.R. § 3.159(c)(2); see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Finally, the Board notes that at the hearing, the appellant testified she had been treated at the Central Texas Medical Center in San Marcos for her schizophrenia just three weeks prior to the hearing or in February 2010. A review of the claim files shows these records have not been associated with the claim file. On remand, the RO should request and associate these records with the claim file. Accordingly, the case is REMANDED for the following action: 1. Contact the NPRC, or any other appropriate agency, to verify whether the appellant had any periods of ACDUTRA or INACDUTRA from March 1991 to February 1999. The RO should inform the appropriate entity that STRs including a history of possible ACDUTRA service between June 1991 to January 1992, and the appellant's assertions of periods of active duty from March 1991 through July 1991 at the Weapons Station Concord, in New Orleans from July 1991 to August 1991, in Concord from August 1991 to January 1992, and then at Concord through February 1993. 2. Contact the SSA and request all pertinent documentation pertaining to any claim for disability benefits by the veteran including any medical records that Social Security has regarding the appellant. These records should be associated with the claims file. Any negative search must be documented in the claims folder. 3. Request all treatment records for the appellant from the Central Texas Medical Center in San Marcos for treatment of her schizophrenia in February 2010. If no records are available a negative response is requested. 4. Upon completion of the above, readjudicate the claim. If any benefit sought on appeal remains denied, provide the appellant and her representative a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. The appellant 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. 2009). _________________________________________________ T. MAINELLI Acting 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) (2009).