Citation Nr: 1332682 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-21 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a low back disorder with numbness of the feet. ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The appellant served in the United States Marine Corps Reserve. He had unverified periods of active duty for training (ACDUTRA) between October 1955 and December 1957. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the benefits sought on appeal. The appellant appealed that decision to BVA, and the case was referred to the Board for appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 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 Reason for Remand: to verify the nature and dates of service, and to ensure compliance with the Board's prior Remand. As was noted in the Board's prior Remand, the dates of the appellant's service in the United States Marine Corps Reserve are unclear. The Board noted that the RO obtained information from the NPRC that the appellant only has ACDUTRA; however, the dates of these periods of ACDUTRA are not of record. Therefore, the RO/AMC was to verify the dates and character of the appellant's service. Thus, the RO/AMC was also to attempt to obtain and associate with the claims file the appellant's complete reserve personnel records and reserve clinical treatment records. It was noted that the appellant has consistently asserted that he originally injured his back during a period of ACDUTRA in November 1956. See e.g. the July 1957 statement from the appellant to his commanding officer, the appellant's original claim for compensation dated in July 2005 and the appellant's May 2010 substantive appeal. The Board determined after a review of the record at that time that it was clear that the appellant had a low back disorder in 1957; however, it was unclear whether the appellant suffered an injury to his low back during a period of ACDUTRA or whether he currently suffers from a low back injury. It was reported that the appellant's VA claims file is devoid any medical evidence dated after his separation from the Marine Corps Reserve December 1957-a period of more than 53 years. The RO was directed by the Board to contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), the appellant's unit, and any other appropriate location, to request the complete reserve personnel records and reserve treatment records of the appellant. The RO/AMC was to also request verification of the dates the appellant served in United States Marine Corps Reserve to include the dates for each period of active duty for training and inactive duty for training that he attended as well as all periods of active duty service. The RO/AMC was told to prepare a summary of such dates. A review of the file reveals that an attempt was made by the RO/AMC in August 2011 to obtain records from the Oklahoma State Adjutant General for dates of service in the USMC Reserve, to include all dates for periods of active duty for training, inactive duty for training, periods of active duty, a copy of physical examinations, service treatment records, any line of duty determinations, and verification of all periods of service to include a clear showing of dates that were active duty and active duty for training and the character of service for any period of active duty. A response was received from the Oklahoma National Guard Joint Force Headquarters dated in September 2011 indicating that it could not locate any evidence that the appellant was ever a member of the Oklahoma Army or Air National Guard, and requesting that VA provide it with the unit of assignment, location of the unit and the date of separation so that a further search could be conducted. No further development was taken by the RO/AMC. As set forth in 38 U.S.C.A. § 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2), VA must continue efforts to locate requested records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Additionally, the appellant's service personnel records were received from the NPRC. The RO/AMC found that based on these records, the appellant had 31 drills from October 10, 1956 to September 10, 1957 and that he did not attend any. However, the records show that on a Reserve Retirement Credit Report that the appellant had 20 total active duty points and 60 inactive duty points from September 28, 1956 to October 9, 1956. The appellant has indicated that he was injured during a drill in November 1956 at Quantico, Virginia which he did attend, and that it was after June 1957 that he did not attend drill. The Board notes that only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. See Cahall v. Brown, 7 Vet. App. 232, 237 (1994). Reports of retirement points are not sufficient to meet the requirements of the Board's remand order. A listing of dates of service and whether within those dates the service can be characterized as ACDUTRA or INACDUTRA is required. The RO has not provided a summary of the specific dates as specifically delineated by the Board in its prior remand directives. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders, and that the Secretary of Veterans Affairs has a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1988. Therefore, the Board finds that a remand is required for the RO/AMC to take all needed steps to confirm all of the appellant's dates of active duty and inactive duty for training and active duty for training. Accordingly, the case is REMANDED for the following action: (Please note, 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. Contact the Oklahoma State Adjutant General to request information regarding the appellant's service records in response to its September 2011 letter. In doing so, the RO must provide that agency with the unit of assignment, location of the unit and the date of separation from the USMC Reserves so that a further search may be conducted. The RO/AMC should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The appellant should be notified of any action to be taken. 2. The RO/AMC must attempt to verify, through official channels, the appellant's periods of service in the US Marine Corps Reserves, and request the specific dates-not retirement points-for all the appellant's periods of active and inactive duty for training. The RO/AMC should contact the National Personnel Records Center (NPRC), the Records Management Center (RMC), the appellant's unit, Headquarters Marine Corps, Personnel Management Support Branch (MMSB), 2008 Elliot Road, Quantico, Virginia 22134-5030, and any other appropriate location, to request records of the appellant. The RO/AMC must request verification of the dates the appellant served in United States Marine Corps Reserve to include the dates for each period of active duty for training and inactive duty for training that he attended as well as all periods of active duty service. The RO/AMC should prepare a summary of such dates. All efforts to obtain these records should be memorialized in the appellant's VA claims file. The RO/AMC must clearly delineate the periods of active reserve service, ACDUTRA and INACDUTRA for the appellant's period of service in the United States Marines. Reports of retirement points are not sufficient to meet the requirements of this remand order. A listing of dates of service and whether within those dates the service can be characterized as ACDUTRA or INACDUTRA is required. If any of the above records cannot be obtained and the VA does have affirmative evidence that they do not exist, then the RO/AMC should inform the appellant of the records that the VA was unable to obtain, including what efforts were made to obtain them. Also the RO/AMC should inform the appellant that VA will proceed to decide his appeal without these records unless he is able to submit them. The RO/AMC should allow an appropriate period of time within which to respond. 3. IF it is found that the appellant suffered an injury to his back during a period of ACDUTRA, or INACDUTRA, the appellant should be afforded a VA examination to determine the nature and etiology of any current back disorders that may be present. The RO/AMC should provide the examiner with the summary of the appellant's verified dates and types of service. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including his reserve personnel and treatment records, his post-service treatment records, and the lay statements and assertions. The examiner should identify all current back disorders. For each disorder identified, he or she should indicate when the disorder manifested and whether it is at least as likely as not that that the disorder is related to an injury suffered during a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (2013), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 38 C.F.R. § 4.2 (2013); See also Stegall v. West, 11 Vet. App. 268 (1998). 5. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted, the appellant should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2013).