Citation Nr: 1128078 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 07-39 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a lung disability, to include asbestosis and chronic obstructive pulmonary disorder (COPD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1954 to December 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, although the case is under the jurisdiction of the Montgomery, Alabama RO. This case was previously brought before the Board in July 2010 at which time the claim was remanded to the Agency of Original Jurisdiction (AOJ) to further assist the Veteran with the development of his appeal, to include obtaining treatment and service records and affording him a new VA examination. The case is once again before the Board. The Veteran testified at a Board hearing at the RO in Montgomery, Alabama in June 2010. This transcript has been associated with the file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Unfortunately, a remand is required again in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. In its July 2010 remand directives, the Board instructed the AOJ to provide the Veteran with a release form so additional private treatment records could be obtained. The AOJ was also instructed to associate any additional VA treatment records with the file and schedule the Veteran for a VA examination. The Board notes the Veteran was supplied with release forms in July 2010. The most recent Birmingham VA Medical Center treatment records have been associated with the claims file and the Veteran was afforded a VA examination in August 2010. However, the Board also instructed the AOJ to obtain the Veteran's personnel record and associate it with the claims file. Any negative responses were to be noted in the claims file. Following the July 2010 Board remand, the AOJ requested the Veteran's personnel file in July 2010. A later July 2010 response from the National Personnel Records Center (NPRC) was received that indicated the Veteran's case was fire related, but there were alternate record sources that could be used to reconstruct part of a lost record. The response also indicated the complete service record could not be reconstructed. The Board finds that the July 2010 response is unclear and does not comply with the July 2010 remand instructions. There is an indication that alternate sources are available, but it is not clear if the alternate sources were searched to reconstruct the Veteran's personnel file. The July 2010 response also appears to state that part of the Veteran's service record could be reconstructed, but it does not define which part this is. There is a response noting that at least some of the Veteran's service records are presumed to have been lost in a 1973 fire at the NPRC facility located in St. Louis, Missouri. Inasmuch as the Veteran was not at fault for the loss of the missing records, VA is under heightened obligation to assist the Veteran in the development of his claim. See, e.g., Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This heightened obligation includes searching for alternative medical records. Moore v. Derwinski, 1 Vet. App. 401 (1991); see also Cromer v. Nicholson, 455 F.3d 1346 (2006). In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court of Appeals for Veterans Claims held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand. Because the Board's remand directives have not been substantially complied with, the AOJ must request the NPRC, or other appropriate source, provide any available section of the Veteran's personnel file or indicate that no personnel records are available. The response should indicate all sources checked for this information. See Stegall, supra. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Request from the NPRC, or other appropriate source, any available portion of the Veteran's personnel file. If the personnel file is unavailable, this should be indicated in a formal finding included in the claims file. The finding should also indicate all sources from which the Veteran's personnel file was requested. 2. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the claim. If the benefit sought on appeal is not granted, the appellant and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. 2010). _________________________________________________ L.M. BARNARD 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) (2010).