Citation Nr: 1335894 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 95-09 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to November 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 1993 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which, in pertinent part, denied entitlement to service connection for a low back disability and TDIU. The Veteran and his spouse testified at Travel Board hearing in October 1999 before a Veterans Law Judge (VLJ). Although that VLJ is no longer a member of the Board, the Veteran has indicated that he does not wish to have a new hearing before a current VLJ. Therefore, a transcript of that hearing has been associated with the claims file and the Board will proceed with the appeal. When this case was most recently before the Board in March 2012, it was remanded for additional evidentiary development; it has since been returned for further appellate action. The appeal is REMANDED to the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board regrets further delay in this case, but finds that an additional remand is necessary to comply with the March 2012 remand orders of the Board. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). The Board specified in the March 2012 remand that the Agency of Original Jurisdiction (AOJ) should request any military police reports, morning reports, and unit records that would pertain to the Veteran's reported truck accident that occurred between the fall of 1968 and the spring of 1969 in Vietnam. In response to the Board's remand orders, in pertinent part, the RO contacted the National Personnel Records Center (NRPC) in May 2012 and asked for copies of any morning reports from the Veteran's unit, "218 CC & S" and "any unit [he] served in at Long Binh" for the period between September 1, 1968 and November 30, 1968. The NPRC responded that they could "not identify the unit or the allegation of request." The Board finds that this request and response are inadequate. Specifically, as argued by the Veteran's attorney in an October 2013 statement, the RO did not request records from December 1968 to May 1969, as instructed in the Board's remand, and did not fully identify that the Veteran served in the USA Depot Long Binh USARPAC in the unit 218th CC&S USARPAC. Consequently, an accurate request for morning reports to the NPRC is required. Moreover, in order to facilitate the foregoing request, the AOJ should provide details of the alleged accident to include that it was an 18 wheeler tractor, towing a water tanker that was ambushed by the Viet Cong. Finally, the AOJ should ensure that the request for morning reports to the NPRC include any such records in microfilmed tapes format that the NPRC identified in a September 2, 2010 letter as being at their location. Accordingly, the case is REMANDED for the following action: 1. Contact the NPRC and/or any other appropriate facilities (to include the National Archives and Records Administration) and request the following types of records (to include microfilmed tape format) specifically pertaining to the Veteran's reported motor vehicle accident of an 18 wheeler tractor, towing a water tanker, that was ambushed by the Viet Cong that occurred between September 1968 and May 1969 in Vietnam: a) military police records; b) unit records of the 218th CC&S USARPAC and any other units the Veteran served with at the US Army Depot in Long Binh; and, c) any other records that might pertain to the reported in-service motor vehicle accident. All efforts to obtain the records listed above must be documented in the claims file. If any records are not available, prepare a memorandum citing the specific steps that were taken to obtain the records. 2. Readjudicate the claims on appeal. If the benefits sought are not fully granted, issue an supplemental statement of the case to the Veteran and his attorney, and following an appropriate time for response, return the case to the Board if otherwise in order. 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). _________________________________________________ MICHAEL A. PAPPAS 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).