Citation Nr: 1322111 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 09-35 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right foot disorder. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for chronic tinnitus. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The appellant has verified "annual training" from June 13, 1987 to June 28, 1987; however, the appellant's periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) are otherwise unverified. The appellant has reported active duty service for the periods from March 15, 1982 to September 3, 1982, from September 11, 1981 to July 6, 1989, and from September 1981 to September 29, 2003; however, he is not shown to have had any active duty other than for training purposes, and the service dates are unverified. See 3101 Print dated in July 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board has reviewed the physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303(a) (2012). Active military service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d) (2012). 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 (2012). Presumptive periods for service connection do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). In the June 2011 Remand, the Board directed the RO to attempt to verify the appellant's exact dates of service by contacting the appropriate service department and/or record storage facility, to include the Adjutant General's Office of the State of Texas and the appellant's former United States Army National Guard Unit, the 142nd Infantry, and request copies of any service records in their possession. The Board also directed the RO to ask the appellant to provide any records in his possession that may clarify his service, obtain pertinent VA and non-VA treatment records dated subsequent to March 2009, afford the appellant with medical examinations for the claimed disabilities, and thereafter, readjudicate the claims. After review of the record, the Board finds that there has not been sufficient compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In pertinent part, the Board notes that, in July 2011, the RO contacted the Adjutant General of the State of Texas, and requested copies of all physical examinations, service treatment records, line of duty determinations, verification of all periods of service, and a copy of the NGB 22 and/or point statement. The Office of Texas Adjutant General responded in August 2011 that there were no records available at the location for the appellant. The RO also attempted to request the appellant's service treatment records through the Personnel Information Exchange System (PIES); however, an error message was received that read that the request could not be submitted because the service separation date was after July 1, 2002, and asked that the request be submitted through the Defense Personnel Records Imaging System (DPRIS) web application. The RO subsequently submitted a request for service treatment records through DPRIS, and the response was negative. A formal finding on the unavailability of service records was later made. Nonetheless, sufficient efforts to obtain information regarding the appellant's exact dates of service from his former United States Army National Guard Unit(s), Det 2 Co C 2-142 Inf and/or Det 1 Co C 2d Bn 142 Inf, have not been made. The record reflects that an employee at the RO called the National Guard office located in Plainview, Texas in July 2011, and no one answered the phone; however, no other attempts to contact the office were made. Therefore, a remand is necessary in order to allow the RO the opportunity to satisfy the Board's remand directive to attempt to verify the appellant's dates of service and obtain service records through his former National Guard unit. Also, pursuant to the Board's remand order, the RO asked the appellant in July 2011 to identify and provide the necessary consent for any VA and non-VA medical treatment received for the claimed disabilities subsequent to March 2009. The appellant did not respond. The RO, thereafter, submitted multiple requests for treatment records dated from September 2003 to March 2009 from the VA Medical Center (VAMC) in Amarillo, Texas, and the Amarillo VAMC responded that there were no records in the system available prior to March 24, 2009. A Formal Finding on the Unavailability of Federal Treatment Records was made in December 2011; however, the records request from the RO was in error. The RO requested the appellant's VA treatment records for the period prior to March 2009, rather than treatment records dated since March 2009, as directed by the Board in the June 2011 remand order. Therefore, a remand is necessary in order to allow the RO the opportunity to satisfy the Board's remand directive to obtain updated VA treatment records. In addition to the development above, the Board finds that an attempt to obtain the appellant's pay records through the Defense Finance Accounting Service (DFAS) should be made as these records can be pertinent in determining the appellant's dates of ACDUTRA and INACDUTRA service. The record does not reflect that a request for the appellant's pay records has been submitted to DFAS. Therefore, on remand, the RO should contact DFAS and obtain the appellant's pay records in order to ascertain the service periods of ACDUTRA and INACDUTRA. Furthermore, in May 2013, the appellant submitted two completed and signed VA Forms 21-4142 identifying additional treatment records pertinent to the appeal for service connection of a right foot disorder. The appellant reported that he received treatment for the right foot in February 2013 at Covenant Hospital and from Dr. A.J. in Lubbock, Texas and has authorized VA to obtain the records. In consideration thereof, the Board finds that a remand to obtain the identified private medical records is necessary. 38 C.F.R. § 3.159(c)(1) (2012). Accordingly, the case is REMANDED for the following actions: 1. Attempt to verify the appellant's exact dates of service by contacting the appellant's former United States Army National Guard Unit(s), Det 2 Co C 2-142 Inf and/or Det 1 Co C 2d Bn 142 Inf, with a request that they provide copies of any and all records in their possession that may provide clarification as to the appellant's exact dates of service, to include periods of active duty, ACDUTRA, or INACDUTRA. Any response or information, once obtained, should be made a part of the record. If the RO is unable to comply with the request, so state for the record and explain why. 2. Obtain any records pertaining to the appellant's treatment from March 2009 to the present through the Amarillo VA Health Care System in Amarillo, Texas. Once obtained, the treatment records should be associated with the record. All negative responses should be properly documented in the record, to include preparing a memorandum of unavailability, and the procedures outlined in 38 C.F.R. § 3.159(e) should be followed. 3. Contact the DFAS and request the appellant's pay/finance records to determine the specific dates of active duty, ACDUTRA, and INACDUTRA. The available service records in the claims file show that the appellant was assigned to the Det 2 Co C 2-142 Inf in September 1981, and Det 1 Co C 2d Bn 142 Inf in June 1987. All verified periods of service and responses received must be documented and associated with the record. 4. Obtain the treatment records from Dr. A.J. and Covenant Hospital in Lubbock, Texas pertaining to the appellant's treatment for a right foot disorder and associate them with the record. See VA Forms 21-4142 dated in May 2013. Negative responses should be properly documented in the record, and the procedures outlined in 38 C.F.R. § 3.159(e) should be followed. 5. After the ordered development is completed and any additional development is undertaken, to include consideration as to whether further medical examination or medical opinion is needed, the remanded claims should be readjudicated. The RO should specifically make a finding regarding the exact dates of the appellant's active duty, ACDUTRA, and INACDUTRA service. If the benefits sought on appeal remain denied, the appellant and the attorney should be provided with a Supplemental Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the appellant and the attorney. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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. 2012). _________________________________________________ K. J. ALIBRANDO 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).