Citation Nr: 1322200 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 08-21 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia. 2. Entitlement to non-service connected pension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The appellant had service in the Naval Reserves from March 1991 to February 1999. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of May 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, TX. A hearing before the undersigned Acting Veterans Law Judge was held in March 2010. A transcript of the hearing has been associated with the claim file. This claim was previously remanded by the Board in May 2010 for additional development. 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 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 appellant's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Service connection for an acquired psychiatric disorder, to include schizophrenia In May 2010, the Board remanded the appellant's claim in order for records to be obtained documenting her periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) from the National Personnel Records Center (NPRC) or other appropriate sources. In September and October 2010, the RO requested the appellant's military records from the Department of the Navy. The Department of the Navy responded stating there were no records within the appellant's personnel file. According to a service personnel record within the claims file, some dates were provided, however, including ACDUTRA dates of July 21, 1991, to August 2, 1991, for "NAVRESMGTSCOL" in New Orleans, and from January 5, 1992 to January 17, 1992, at the Naval Weapons Station in Concord, California. As previously stated in the May 2010 Board remand, service personnel records show that the appellant enlisted in the Naval Reserve in March 1991 for a period of eight years. Additional personnel records show the appellant was placed on drill pay status upon enlistment in March 1991. Service treatment records show an entry in June 1991 which noted the appellant was qualified for ACDUTRA. An entry of January 1992 shows the appellant was found to be physically qualified to be released from ACDUTRA. Although the service records include evidence of ACDUTRA and INACDUTRA service until February 1992, the record does not contain a complete listing of when the appellant spent time performing ACDUTRA and INACDUTRA within her periods of service with Naval Reserves from February 1992 to February 1999. The record does not indicate that adequate efforts were made to obtain information of the appellant's service specifically from 1992 to 1999 from other federal sources. Therefore, the Board finds that an additional remand of this issue is necessary so that VA can attempt to verify the Veteran's specific periods of ACDUTRA and INACDUTRA. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Court held that compliance by the Board or the RO with remand instructions is neither optional nor discretionary). In addition, the appellant's pay records from February 1992 to February 1999 should be requested from the Department of Defense Accounting and Finance Center. 38 U.S.C.A. § 5103A(b). If it is determined that the records are not available and that further attempts to obtain them would be futile, a written finding of unavailability of records must be added to the claims file. Nonservice-Connected Pension Pension is a benefit payable by VA to veterans of a period of war who meet the service requirements prescribed in 38 U.S.C.A. § 1521(j) because of a disability, or to survivors of such veterans. 38 U.S.C.A. § 1541(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.3(b)(4) (2012). A veteran meets the necessary service requirements if he served in active military, naval, or air service under one of the following conditions: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a). The Board observes that the appellant may have had ACDUTRA during a recognized period of war, namely during the period from 1992 to 1999. However, ACDUTRA service is not considered "active military service" unless the appellant was disabled from a disease or injury incurred in or aggravated in the line of duty. See 38 U.S.C.A. § 101 (24). Still, there is the possibility that through further development requested on the aforementioned claims, that preliminary requirement of a service-connected disability during ACDUTRA could be established. Therefore, the claim for basic entitlement to nonservice-connected pension is "inextricably intertwined" with the issue being remanded, and the disposition of the nonservice-connected pension claim must be deferred pending resolving this preliminary matter. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). See also Parker v. Brown, 7 Vet. App. 116 (1994). Accordingly, the case is REMANDED for the following action: 1. Appropriate sources - to include the Naval Reserve Personnel Center (NRPC) - should be contacted to obtain verification of the exact dates of the Appellant's periods of ACDUTRA and INACDUTRA from February 1992 to February 1999. Contact the Department of Defense Finance and Accounting Service and request copies of the appellant's pay records for the periods covering February 1992 to February 1999. The claims folder should document the efforts made to obtain these records along with any negative responses. If the service personnel records cannot be obtained, a letter should be sent to the appellant informing her of the steps taken to obtain the service personnel records, listing alternative sources, and requesting him to furnish any such records in his possession or to identify the possible location of such records. 2. Thereafter, the RO/AMC should readjudicate the claims for service connection for a an acquired psychiatric disorder, to include schizophrenia, as well as entitlement to nonservice-connected pension, based upon all additional evidence received. If the benefits sought on appeal are not granted, the appellant and her representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). _________________________________________________ T. MAINELLI 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).