Citation Nr: 1337238	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO.  10-49 016	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for rhabdomyolysis.


WITNESSES AT HEARING ON APPEAL

Appellant and her parents


ATTORNEY FOR THE BOARD

E. I. Velez, Counsel


INTRODUCTION

The Appellant has uncharacterized active duty service from April 2009 to June 2009. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. 

A Travel Board hearing in front of the undersigned Acting Veterans Law Judge was held in September 2011.  A transcript of the hearing has been associated with the claim file. 

The Board notes that the appellant's DD-214 lists the character of service as "uncharacterized."  A person seeking VA benefits must first establish that they have attained the status of veteran.  Holmes v. Brown, 10 Vet. App. 38 (1997).  The term veteran means a person who served in the active military, naval or air service, and who was discharged or released therefrom under conditions other than dishonorable.  38 U.S.C.A. § 101(2) (West 2002).  A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits.  38 U.S.C.A. § 101(18) (West 2002); 38 C.F.R. § 3.12(a) (2012).  At the Travel Board hearing the appellant stated that she was unaware as to the reason why her service was "uncharacterized."  Prior to determining if the appellant is entitled to the benefit sought on appeal, it must be determined if she has attained the status of veteran.  As the issue of the character of the appellant's service for purposes of VA beneits has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  

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

As noted in the introductory section above, the issue of the character of the Appellant's service for purposes of VA benefits is being referred to the RO for adjudication.  The Board finds that the issue of entitlement to service connection for rhabdomyolysis is inextricably intertwined with the referred issue.  The Board must defer adjudication of this issue pending resolution of the inextricably intertwined referred issue.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together).

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should adjudicate the issue (inextricably intertwined with issues on appeal) of the character of the Appellant's service for purposes of VA benefits (discussed and referred to the RO in the introduction section of this Board decision).  The RO should undertake all necessary development.  The appellant should be advised of the determination, and also advised that any adverse determination is not before the Board, and will only be before the Board if she timely files a notice of disagreement and a substantive appeal after a statement of the case is issued.

2.  After completion of the above and any additional development which the RO/AMC may deem necessary, the RO/AMC should then review the expanded record and readjudicate the claim(s) remaining on appeal.  The RO should issue an appropriate supplemental statement of the case and give the appellant the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

The appellant has the right to submit additional evidence and argument on this matter.  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).



_________________________________________________
A. C. MACKENZIE
Acting 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).