Citation Nr: 1307565 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 05-39 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Robert A. Clarke, Attorney at Law ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran has verified service in the Army National Guard in an active duty for training capacity (ACDUTRA) from February 1989 to May 1989. The Veteran later served in regular active duty status from September 1995 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Louis, Missouri. In April 2011, the appeal was most recently remanded by the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required 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. The Veteran asserts, in substance, that he injured his back while training with the Kansas Army National Guard, and that his current back disability stems from this injury. Moreover, a June 1, 1993, treatment record documents the Veteran's complaints and treatment for a back injury (mid-thoracic spine pain, one day history), while serving with the Kansas Army National Guard. In this regard, the Board notes that to establish basic eligibility for Veterans benefits based on a period of duty as a member of the Army National Guard of any State, a claimant must show either that he was ordered into Federal service by the President of the United States or that his duty was performed under the provisions of statutes governing active duty for training. See 10 U.S.C.A. § 12401 (West 2002); 32 U.S.C.A. §§ 316, 502, 503, 504, 505 (West 2002); Also see 38 U.S.C.A. §§ 101, 106, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.1, 3.6(c)(3) (2012); Allen v. Nicholson, 21 Vet. App. 54 (2007). While the June 1, 1993, treatment record documents the Veteran reported and was treated for a one day history of mid-thoracic spine pain while serving with the Kansas Army National Guard, neither the military pay calendar already provided by the Kansas Army National Guard nor any other record already found in the claims file shows that the claimant was ordered into Federal service by the President of the United States on or about June 1, 1993, or that his duty was performed under the provisions of statutes governing active duty for training on or about June 1, 1993. Accordingly, since a condition precedent for establishing service connection is a claimant having Veteran's status on the day the injury took place (see 38 U.S.C.A. §§ 101, 106, 1110, 1131; 38 C.F.R. §§ 3.1, 3.6(c)(3)) that caused his current disability (see 38 C.F.R. § 3.303 (2012)), the Board finds that a remand to obtain verification that the claimant was ordered into Federal service by the President of the United States on or about June 1, 1993, and/or the Orders calling him to active duty, ACDUTRA, or inactive duty for training (INACDUTRA) on or about June 1, 1993, is required. See 38 C.F.R. § 19.9 (2012). One of the Board's earlier remand's requested that a search for the Veteran's medical records be undertaken by the MEDDAC Command at Fort Carson. Moreover, in March 2009 the MEDDAC Command at Fort Carson notified VA that it did not have any medical records of the claimant. However, it appears that there search only went back to January 1995, while the Veteran's injury took place in late May 1993 and his treatment took place in early June 1993. Therefore, while the appeal is in remand status, the MEDDAC Command at Fort Carson should be asked to once again search there records dating back to May 1993. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance). Accordingly, the appeal is REMANDED for the following actions: 1. The RO shall contact the MEDDAC Command at Fort Carson and ask them to undertake a search for the Veteran's treatment records dating back to May 1993. If no records can be located, the MEDDAC Command at Fort Carson should specifically notify VA of this fact. Because these are Federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. If they cannot be located or no such records exist, a memorandum of unavailability should be prepared outlining all actions to obtain the requested records and the Veteran and his representative should be mailed a copy of this memorandum. 2. The RO shall contact the Kansas Army National Guard and ask them to undertake a search of their records to provide VA with verification that the claimant was either ordered into Federal service by the President of the United States on or about June 1, 1993, and/or the Orders calling him to active duty, ACDUTRA, or INACDUTRA on or about June 1, 1993. If the Kansas Army National Guard records do not show that the Veteran was either ordered into Federal service by the President of the United States on or about June 1, 1993, or that there are Orders calling him to active duty, ACDUTRA, or INACDUTRA on or about June 1, 1993, they should specifically notify VA of this fact. Because these are Federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. If they cannot be located or no such records exist, a memorandum of unavailability should be prepared outlining all actions to obtain the requested records and the Veteran and his representative should be mailed a copy of this memorandum. 3. The RO shall then readjudicate the appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case. The Supplemental Statement of the Case must contain notice of all relevant actions taken on the claim for benefit, to include a summary of the evidence received, and any evidence not received, and all applicable laws and regulations considered pertinent to the issue currently on appeal including those governing Veteran's status (see 10 U.S.C.A. § 12401; 32 U.S.C.A. §§ 316, 502, 503, 504, 505; 38 U.S.C.A. §§ 101, 106, 1110, 1131; 38 C.F.R. §§ 3.1, 3.6(c)(3)). A reasonable period of time should be allowed for response before the appeal is returned to the Board. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).