Citation Nr: 1302253 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-33 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for residuals, injury, right foot. 2. Entitlement to service connection for residuals, injury, left foot. 3. Entitlement to service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The appellant had active duty service in the Army from May 1976 to October 1976. He had additional periods of service in the Army National Guard from approximately 1975 to 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. 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 appellant asserts that he injured his right and left feet during periods of training with the National Guard. Additionally, he asserts that he was first diagnosed with diabetes mellitus during a period of training. Applicable laws and regulations permit service connection for a disability resulting from disease or injury incurred in or aggravated coincident with active duty for training (ACDUTRA); however, the laws limit service connection to only disabilities resulting from injury during inactive duty for training (INACDUTRA), that is diseases which begin during a period of INACDUTRA are not subject to service connection. See 38 U.S.C.A. § 101 (22), (23), (24); 38 C.F.R. § 3.6. The appellant's periods of ACDUTRA and INACDUTRA have not been verified, beyond the establishment of the respective points awarded during each year of reserve service (December 1975 to February 2007). As such dates are pertinent to the claims, an effort should be made to obtain the specific dates. Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. See Cahall v. Brown, 7 Vet. App. 232, 237 (1994). Given the foregoing, a remand is necessary. The RO should verify the appellant's periods of service. In addition, it appears that some of the service treatment records and personnel records may still be outstanding, as the records that are in evidence encompass only part of the appellant's reserve service. Therefore, the RO should also seek to obtain any service treatment records and personnel records which are not already of record. The appellant has provided several different dates regarding the onset of the claimed disabilities, although he has consistently described injuring his right foot when a radio was dropped on it and injuring his left foot when a grill was dropped on it. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and ask him to identify the providers who treated him for his bilateral foot injuries and for his diabetes mellitus (including the name of the doctor who first diagnosed diabetes mellitus). Attempt to obtain any identified records that are not already of record. 2. Contact the Indiana National Guard; the Defense Finance and Accounting Service (DFAS); and any other appropriate sources to verify the appellant's periods of service in the Indiana National Guard, including any actual periods (specific dates) of ACDUTRA and INACDUTRA. Service records providing points are not helpful in this regard. All verified periods of service and responses received must be documented and associated with the claims file. 3. Request the appellant's service treatment records and service personnel records for his service in the Indiana Army National Guard from all appropriate sources including the Indiana National Guard and/or the NPRC. All records received should be associated with the claims file. 4. Then, schedule the appellant for a VA examination. The claims file should be provided for the examiner's review, and a complete rationale should be provided for any opinion expressed. The examiner should determine whether the appellant has a current right or left foot disability, and if so, should provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that such a disability was caused by a grill being dropped on the appellant's left foot, or a radio being dropped on his right foot during reserve service. 4. After the completion of the requested action, the claims on appeal should be readjudicated including consideration of the VA treatment records on Virtual VA. If the claims remain denied, the appellant and his representative should be provided with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the 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. 2011). _________________________________________________ MATTHEW W. BLACKWELDER 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) (2012).