Citation Nr: 1330142 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-20 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, type 2. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of a back injury (claimed as lumbar arthritis and lumbar muscle spasms). 3. Entitlement to service connection for a bilateral hearing loss disability. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for eczema, right lower extremity. 6. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1965 to April 1969, and from September 1987 to March 1988. He also has unverified periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA) as a member of Army Reserve, Air Force Reserve, and the Pennsylvania National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA) for the Pittsburgh, Pennsylvania RO. In the November 2007 rating decision on appeal, among other issues, the RO denied service connection for lower lumbar arthritis. The RO also denied service connection for lumbar muscle spasms as a separate issue. The Board recognizes that the General Rating Formula for Diseases and Injuries of the Spine assigns single disability ratings that embrace both muscle spasm and orthopedic symptoms. See General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a (2012). Additionally, service connection for a back injury was previously denied in an unappealed September 1996 RO decision. As such, the Board has recharacterized the issues of service connection for lumbar arthritis and lumbar muscle spasms as a single issue, namely, a petition to reopen a previously denied claim for service connection for a back injury. 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 In a July 2013 appellate brief, the Veteran's accredited representative argued that the Veteran's complete service records have not been associated with the claims file. After carefully reviewing the claims file, the Board agrees. Service treatment records from the Veteran's two verified periods of active duty have been obtained, presumably from May 1996 and July 1996 RO requests to the National Personnel Records Center (NPRC). However, no records from the Veteran's National Guard service have been associated with the claims file. In June 1995, the RO sent a letter to the Veteran's National Guard unit requesting his treatment records. No response from the unit is of record. No other attempts appear to have been made to obtain the Veteran's National Guard records. The Board emphasizes that records generated by federal facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Consequently, remand is required to obtain the Veteran's National Guard records. If the records are determined to be unavailable, the AMC/RO should produce a formal finding of unavailability and notify the Veteran accordingly. Service connection can be established for disability due to disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA. 38 U.S.C.A. §§ 101(2), (22), (24), 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(d), 3.6(a), (c), 3.303; Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Service connection can also be established for disability due to injury, but not disease, incurred or aggravated in the line of duty during a period of INACDUTRA. 38 U.S.C.A. § 101(2), (23), (24); 38 C.F.R. §§ 3.1(d), 3.6(a), (d). The Veteran's accredited representative has also pointed out that none of the Veteran's periods of ACDUTRA or INACDUTRA have been verified. Evidence of record suggests that the Veteran was a member of the National Guard from 1971 through 1993. The Board notes that medical evidence from the Social Security Administration reflects that on January 21, 1992, the Veteran suffered severe injuries in an automobile accident. As none of the Veteran's periods of ACDUTRA or INACDUTRA have been verified, it is unknown if the Veteran was on ACDUTRA or INACDUTRA at the time of the accident. Consequently, remand is required to verify the Veteran's ACDUTRA and INACDUTRA service. Accordingly, the case is REMANDED for the following action: 1. Obtain any additional VA and non-VA treatment records identified by the Veteran, to include attempting to obtain all pertinent records relating to the Veteran's National Guard service. All attempts to secure this evidence must be documented in the claims folder. If, after making reasonable efforts to obtain named records the records are unable to be secured, the AMC should produce a formal finding of unavailability and add it to the claims file. The AMC should also notify the Veteran and (a) identify the specific records that were unable to be obtained; (b) briefly explain the efforts that were made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Then, for any diseases or injuries pertinent to the present claims, verify if the disease or injury occurred during a period of active duty, active duty for training, or inactive duty for training. For example, the record reflects that the Veteran sustained injuries during an automobile accident on January 21, 1992. Additionally, the record further reflects that the Veteran was treated for tinea versicolor in February 1966. 3. After the above development has been completed, perform any further development suggested by the record to include, if necessary, appropriate VA etiology examinations. 4. Then, the AMC/RO must readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 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). _________________________________________________ DAVID L. WIGHT 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).