Citation Nr: 1324392 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 09-26 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for a back disability. 4. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active military service from October 1944 to March 1946 and from June 1947 to July 1950. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In September 2012, this matter was remanded by the Board for additional development and adjudication. This having been completed, the case has been returned to the Board for further review. The Board notes that, in addition to the Veteran's claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. 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 Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he currently experiences tinnitus, hearing loss, a back disability, and a right knee disability due to his time in service. Specifically, the Veteran has claimed that he was injured in a motor vehicle accident in September 1949, in which he incurred a traumatic brain injury as well as injuries to the right knee and spine that required his hospitalization for two months. Although the Board sincerely regrets the additional delay, it is necessary to again remand the matters to ensure that the terms of the Board's earlier remand have been complied with. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on the veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). In this regard, the Board notes that VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). The instant matters were previously remanded was remanded in September 2012 in part for the agency of original jurisdiction (AOJ) to request the Veteran's complete service medical records from the Personnel Information Exchange System (PIES), or any other agency that may hold records relevant to the Veteran's claimed in-service injury and subsequent hospitalization. The AOJ was also asked to specifically request that PIES, or any other appropriate agency, search sick and morning reports for the Veteran's squadron for any evidence supporting the Veteran's claimed in-service motor vehicle accident and subsequent head, back, and right knee injuries. The AOJ's request was to specify that the time period to be searched is September 1949. Upon remand, the Veteran's complete service treatment records (STRs) were requested from PIES, which request was met with a negative response. In May 2013, a formal finding on the unavailability of STRs was issued. The notice indicated that the Veteran's STRs and sick and morning reports from the National Personnel Records Center (NPRC) were unavailable for review. However, it does not appear from the AOJ's request that sick and/or morning reports for the Veteran's squadron were infact requested. Indeed, the request code utilized was "M01". However, in accordance with the VA Adjudication Procedure Manual, M21-1 MR, request code "M05" is to be utilized when requesting sick and/or morning reports in cases such as this where a veteran's records may be "fire-related." Moreover, when evidence to support alleged injury or illness is not found in STRs, the M21-1 MR directs the requester to use code "O20" to search for morning reports for a specified time period. Further, while the AOJ sent to the Veteran a letter dated in March 2013 stating that the requested searches had been undertaken, the Veteran's claims file does not confirm this, nor does the AOJ's May 2013 Formal Finding of Unavailability. As such, this matter must be remanded for completion of the previously requested development. See Stegall, supra. In view of the foregoing, the case is REMANDED to the AOJ for the following action: (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. The AOJ must contact PIES, or any other agency that may hold records relevant to the Veteran's claimed in-service injury and subsequent hospitalization. Specifically, a search should be conducted for sick and/or morning reports for the Veteran's squadron. (The AOJ should undertake efforts to appropriately identify the Veteran's organizational assignment.) The AOJ must identify the subject of its request as being information specific to the Veteran, and not unit activity. Further, the AOJ should specify that it is searching for records dated in September 1949. The AOJ must identify the correct address code to which to send this request for information. The appropriate agency(ies) must be contacted to obtain the records. All attempts to obtain this data, and any responses received, should be documented in the claims folder. If the AOJ receives a negative response to its request for records from any agency, the Veteran must be notified of that determination in compliance with 38 C.F.R. § 3.159(e) (2012). The Veteran should also be informed of any previous negative responses for records. 2. After all the above development has been completed, the AOJ must undertake any additional development deemed necessary, including, if appropriate, obtaining further medical examination and opinion addressing the etiology of the Veteran's claimed hearing loss, tinnitus, right knee, and back disabilities. (It is noted that the Veteran was previously scheduled for VA examinations in connection with his claims but that he failed to report for such examinations due to not feeling well. Although the Veteran did not request that those examinations be rescheduled, the evidence demonstrates good cause for failing to report for the scheduled examinations.) 3. After completing the requested actions and any additional notification and/or development deemed warranted, the claims on appeal must be adjudicated in light of all pertinent evidence and legal authority. If any benefit sought is not granted, the Veteran must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. No action is required of the Veteran until he is notified. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). ____________________________________________ KRISTIN E. NEILSON 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 Court. 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).