Citation Nr: 1323755 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 08-00 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Deanne L. Bonner, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The appellant served in the U. S. Army Reserves between July 2000 and January 2006. He was determined to be medically unfit for retention due to ulcerative colitis and herniated lumbar disc. The appellant had verified active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA) from August 12, 2001 to August 15, 2001, December 20, 2002 to December 22, 2002, November 30, 2003 to December 12, 2003, and from December 16, 2003 to December 19, 2003. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a March 2007 rating decision of the VA Regional Office in St. Petersburg, Florida. That decision denied service connection for degenerative disc disease of the lumbar spine and also denied service connection for ulcerative colitis. The appellant was afforded a personal hearing at the RO in July 2008 before the undersigned Veteran's Law Judge sitting at St. Petersburg, Florida. The transcript is of record. In January 2009, the Board denied the appellant's claim. He appealed the denial of service connection for degenerative disc disease of the lumbar spine to the United States Court of Appeals for Veterans Claims (Court). In a May 2009 Order, the Court vacated the Board's decision and remanded this appeal for further development consistent with instructions in a May 2009 Joint Motion for Remand. In March 2010, the Board issued a decision which again denied the claim on appeal. The appellant appealed that decision to the Court. In a March 2012 Memorandum Decision, the Court vacated the Board's March 2010 decision and remanded the matter to the Board for readjudication. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In a March 2012 memorandum decision, the Court vacated the March 2010 Board decision and remanded the claim on appeal for readjudication. The basis for this Order was, essentially, because VA had not fulfilled its duty to assist by failing to make an attempt to obtain relevant Federal payroll records identified by the appellant. Specifically, the Court found that the Board had not adequately explained why the duty to assist had been fulfilled, given VA's failure to make any attempts to obtain payroll records from December 2000, which the Veteran claimed would demonstrate he was on ACDUTRA or INACDUTRA at the time of his alleged back injury. Accordingly, the claim must be remanded so that an attempt can be made to obtain any relevant Federal payroll records which may exist. 38 C.F.R. § 3.159(c)(2) (2012). Accordingly, the case is REMANDED for the following actions: 1. Contact the appropriate Federal or service department office, and obtain copies of all payroll records related to the appellant's service in the U.S. Army Reserves from July 2000 to January 2006. A formal determination, pursuant to 38 C.F.R. § 3.159(c)(2), must be entered in the record if it is determined that the above records or information do not exist or that efforts to obtain them would be futile. In the event that it is determined that the records are unavailable, provide the appellant with appropriate notice under 38 C.F.R. § 3.159(c), and give him an opportunity to respond. 2. The RO must then readjudicate the claim and, thereafter, if the claim on appeal remains denied, the appellant and his representative must be provided a supplemental statement of the case. After the appellant and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ F. JUDGE FLOWERS 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).