Citation Nr: 1300935 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 10-32 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right hip disability. 2. Entitlement to service connection for right knee arthritis. 3. Entitlement to service connection for a right ankle disability. 4. Entitlement to service connection for a disability manifested by right thigh and foot numbness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from January 1945 to November 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran testified at a hearing in November 2011 before the undersigned. A copy of the transcript has been associated with the claims file. In February 2012 the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the appellant if further action is required. REMAND While the Board regrets the further delay that a remand of this case will cause, the record is not ready for appellate review of the issue on appeal. The following further development is required. In its February 2012 remand, the Board directed the RO to contact the National Personnel Records Center (NPRC) and request copies of the Surgeon General's Office extracts pertaining to all military hospitalizations for the Veteran for the year 1945. In February 2012, the RO requested "active duty inpatient clinical records" for a "condition of boils, face, hands, arms and right leg" for the year 1945. In a February 2012 response, NPRC informed VA that the Veteran's service treatment records and Surgeon General's Office extracts were lost in a fire in 1973 and no records were on file at NPRC. NPRC's response also indicated that the request could be resubmitted under Personnel Information Exchange System (PIES) request code M05. In cases where the Veteran's service treatment records have been lost or destroyed, VA has a heightened duty to assist the Veteran in development of his claim, to include identifying the types of alternate or collateral sources of evidence that may assist the veteran in substantiating his claim, such as statements from service medical personnel and "buddy" certificates or affidavits. See Dixon v. Derwinski, 3 Vet.App. 261 (1992). The Veteran was provided appropriate notice of VA's expanded duty to assist in an April 2012 letter. However, in order to search for information in fire-related cases, NPRC must rely on secondary evidence. In order to facilitate searches of auxiliary records, the Veteran is typically required to complete and submit NA Form 13055, Request for Information Needed to Reconstruct Medical Data. The Veteran was not provided with this form. On remand, the AMC must provide the Veteran with this form. The Veteran is entitled to substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the AMC requested inpatient clinical records, which are different records than extracts from the Surgeon General's Office. Extracts are records that are maintained for statistical purposes and note hospital admissions; they are not inpatient treatment records. On remand, the AMC must request the extracts. Further, the RO specified a "condition of boils, face, hands, arms and right leg." These are not the disabilities that are the subject of this appeal. When making the records request, the RO should not specify conditions. Lastly, the February 2012 remand directed the RO to provide the Veteran's claims file to a VA examiner to render an etiology opinion for the claimed disabilities. If additional records are obtained from the Surgeon General's Office, the claims file should be returned to the examiner so that a new etiology opinion can be rendered after review of the new information. 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) (2012). Expedited handling is requested.) 1. Contact the NPRC and request copies of the Surgeon General's Office extracts pertaining to all military hospitalizations for the Veteran from the year 1945. Associate any obtained records with the claims file. If a negative response is received that again notes the records were lost in the 1973 fire and suggesting a PIES M05 request code, provide the Veteran with an NA Form 13055 and inform him that a fully completed form is necessary for further search for service treatment records. If the Veteran returns a completed NA Form 13055 within the prescribed time limit, conduct another NPRC request for records under the PIES M05 request code. If an inquiry with the M05 code results in a negative reply, the RO/AMC must complete a memo of service record unavailability and associate it with the record and the Veteran and his representative must be notified. 2. If and only if additional records are obtained, return the claims file to the clinician who rendered the August 2012 etiology opinion to provide a new opinion as to whether the Veteran's current right hip, right knee, right ankle, and right thigh disabilities are at least as likely as not (50 percent or greater probability) related to a disease or injury in military service. If that examiner is no longer available, the claims file must be provided to another appropriate clinician. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. 3. After the above has been completed, the AMC must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. 2012). _________________________________________________ K. PARAKKAL 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) (2012).