Citation Nr: 1330176 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-06 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The appellant served with an Army National Guard unit from January 1963 to May 1966 with active duty for training from March 6 to August 29, 1963, and from August 7 to August 21, 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The appellant was scheduled to appear at the Muskogee RO for a videoconference hearing before a Veterans Law Judge on August 24, 2011. However, he withdrew his request for a hearing pursuant to 38 C.F.R. § 20.704(e). REMAND In this matter, the appellant asserts entitlement to service connection for a low back disability, which he contends was injured during military service. See the appellant's statement dated January 2011. As indicated above, he served in the Army National Guard from January 1963 to May 1966 with confirmed active duty for training from March 6 to August 29, 1963, and from August 7 to August 21, 1965. Service connection may be granted for disability resulting from either disease or injury incurred during active duty for training (ACDUTRA). With respect to time periods of inactive duty for training (INACDUTRA), service connection may only be granted for injury (and not disease) so incurred. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002). Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. Cahall v. Brown, 7 Vet. App. 232, 237 (1994). It is undisputed that the appellant is currently diagnosed with a low back disability--specifically, lumbar intervertebral disc syndrome with degenerative arthritis. See, e.g., the VA examination report dated November 2010. With respect to in-service injury, evidence available in the claims file indicates the appellant sustained an injury to the low back in approximately March 1966. Notably, in a May 1966 letter, Dr. J.F.L. reported that the appellant was "under my care with a ruptured intervertebral disc in [his] lower back. [He has] been hospitalized at the St. Francis Hospital, Wichita, Kansas, and [he was] dismissed on May 17, 1966 at which time [he was] wearing a brace." In a letter dated November 1966, Dr. J.F.L. documented the appellant's diagnosis of herniated disc, lumbar spine, and reported that the "symptoms first appeared (or accident happened) in March 1966." Similarly, in a February 2007 letter, Dr. R.F.M. reported that the appellant "was a patient of mine in the 1960's. In 1966 he was treated for ruptured intervertebral disc at lumbar 4 and 5 after heavy work in the military and was referred to [an] orthopedist in Wichita, Kansas." Additionally, a notation of "backache - herniated nucleus pulposus - lumbar profile" was documented in an April 1967 quadrennial examination for the Army Reserves. In a separate report of the quadrennial examination dated in May 1967, it was noted that the appellant reported a ruptured disc secondary to an accident on March 28, 1966. The examiner also documented the appellant's report of recurrent low back difficulty for the last five years. In a May 1967 letter, Dr. J.F. explained that the appellant's back complaints had been present since March 1966 "at which time [he] was lifting a casing...He was placed in traction and was then in a brace. He was off work about nine months." In addition, the appellant recently submitted a statement in support of his claim from a third party, Mr. L.A.W., who said that, in February or March 1966, the appellant was helping load a tool chest onto a truck, and he had pain in his back. It was noted that this was while performing duty with the National Guard. See the statement of Mr. L.A.W. dated February 2010. Although there is ample evidence demonstrating that the appellant likely injured his low back in an accident in March 1966, a question remains as to whether the injury was incurred during a period of ACDUTRA or INACDUTRA. To this end, the Board takes judicial notice that March 28, 1966, was a Monday. The Board observes that the RO previously attempted to confirm the dates of the appellant's periods of duty. However, a review of the claims file does not make clear what the appellant's specific INACDUTRA dates were; in particular, whether he was actively participating in weekend drills during the time period in question. The Board recognizes that some of the service personnel records have been associated with his VA claims file; however, his periods of INACDUTRA have not been identified. The Board recognizes that guard units often did not keep detailed records of attendance at drills, an effort should be made to determine whether the appellant attended any drill during March 1966. Additionally, the Board observes that the RO previously requested the appellant's service records from the Office of the Adjutant General in Oklahoma as well as the National Personnel Records Center (NPRC). Notably, a review of the records received from the NPRC suggests that the appellant subsequently served in the Missouri Army Reserves. See the letters from the Office of the Adjutant General in St. Louis, Missouri dated February 1967, May 1967, and April 1967. Therefore, upon remand, efforts should be made to obtain any outstanding records pertaining to the appellant's reserve activity. Further, in the April 1967 quadrennial examination report, it was indicated that the appellant had a history of a ruptured disc and was previously hospitalized 21 days in pelvic traction in the past year. He was "[u]nable to work in past year. Has drawn disability compensation." It is unclear from this notation whether the appellant received Worker's Compensation, Social Security Administration (SSA) disability benefits, or another type of disability compensation during that time. To this end, the Board notes that the May 1967 orthopedic quadrennial examination indicated that the appellant was working as a salesman; however, the name of his employer was not identified. As such, the Board finds additional development is required prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate records custodians, to include the Offices of the Adjutant General in Oklahoma and Missouri, in an attempt to confirm the exact dates and status of the appellant's service with the Army National Guard and Reserves to include specific periods of ACDUTRA, INACDUTRA, or other service. A list of the drill days of the appellant's unit for the month of March 1966 should be ascertained, if possible. (In this regard, a statement showing only retirement points will not suffice.) Any pay records showing dates of duty for the appellant should be sought. Also, all efforts should be made to obtain any missing service records identified by these sources, including any line-of-duty determination that may have been made as a result of the incident described by Mr. L. A. W. Any response should be associated with the appellant's claims file. If said records cannot be obtained, provide the appellant specific notice of the unavailability of these records pursuant to 38 C.F.R. § 3.159(e)(1). All such available records should be associated with the appellant's claims file. 2. Request from SSA the records pertinent to the appellant's claim for Social Security disability benefits and the medical records relied upon concerning that claim. Also, search again for all records that may have been created at St. Francis Hospital during March or April 1966. 3. Undertake appropriate action to obtain all documents and decisions (to include any medical records underlying a decision) pertaining to any Worker's Compensation claim that may have been filed in 1966 or 1967 in conjunction with a claimed back injury. 4. Thereafter, undertake any additional development suggested by the record and readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide the appellant and his representative with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. The appellant 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 (the Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ________________________________ MARK F. HALSEY 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) (2013).