Citation Nr: 1310085 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 08-12 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from February 1960 to April 1962. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Appeals (VA) Regional Office (RO) in Wichita, Kansas. In June 2009, the Veteran testified during a hearing at the RO before a Veterans Law Judge (Board hearing). A transcript of the hearing is of record. In September 2009, the Board remanded the Veteran's claim to the RO for further development. Then, in a January 2012 letter, the Board advised the Veteran that the Veterans Law Judge who presided over his June 2009 Board hearing was no longer employed at the Board and offered him the opportunity to testify during another Board hearing. In February 2012, the Veteran responded that he wished to testify during another Board hearing. Thus, in March 2012, the Board remanded his case to the RO to comply with his request to testify during another Board hearing that was held in June 2012 before the undersigned Veterans Law Judge. A transcript of that hearing is also of record. In September 2012, the Board remanded the Veteran's case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development. 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. VA will notify the appellant if further action is required. REMAND During his June 2012 Board hearing, the Veteran testified that he had a restricted profile due to his back disorder in service for which he was treated at Tripler Army Medical Center (AMC) while stationed in Honolulu, Hawaii. See Board hearing transcript at 4-5. In September 2012, the Board remanded the Veteran's case to the AMC, in part, to obtain records regarding his treatment at the Tripler AMC. In a November 2012 response to the AMC's inquiry, Tripler AMC indicated that there was no record of the Veteran. Attached to its response was a form letter noting that military retired records were archived at the National Personnel Records Center (NPRC) that moved to a new location in Illinois in October 2008. The NPRC address and contact phone number were provided, and as were the phone numbers for military or civilian personnel records. It was noted that "this does not apply to Service Treatment Records...that are retired to Veterans Affairs Management Center" and the web address for that location was provided. The RO did not subsequently contact the NPRC for the Veteran's records from Tripler AMC. In February 2013, an RO representative contacted the Veteran by telephone, advised him that his Tripler AMC records were unavailable and asked if he had the records, but he did not. In a February 2013 memorandum, the RO concluded that records regarding the Veteran's treatment at Tripler AMC were unavailable and that further efforts to obtain them would be futile. However, as noted by the Veteran's service representative in a March 2013 written statement, there is no indication that the AMC contacted the NPRC regarding the Veteran's Tripler AMC records. Morevoer, ordinarily at least two requests for the records will be required unless it is reasonably certain that further efforts would be futile. Thus, further efforts to obtain the records of the Veteran's treatment at Tripler AMC should be made. 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 National Personnel Records Center and request all records regarding the Veteran's treatment for a back disorder at Tripler Army Medical Center from February 1960 to April 1962. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. Ordinarily at least two requests for the record will be required unless it is reasonably certain that further efforts would be futile. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(e) (2012). 2. Thereafter, readjudicate the Veteran's claim in light of the additional evidence. If the claim is not granted to his satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. The appellant has the right to submit additional evidence and argument on the matter (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). _________________________________________________ ERIC S. LEBOFF 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).