Citation Nr: 1337766 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 13-11 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1979 through February 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 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 The only service treatment records (STRs) or personnel records in the claims file are an entrance examination from October 1978 and a copy of one page of microfiche. According to a July 2010 memorandum, the RO requested STRs and personnel records from the National Personnel Records Center (NPRC) in March 2010, and learned that, according to the Marine Corps, the STRs were lost, and that the only personnel portion of the record was retired to the NPRC. The RO followed up with the NPRC, and some pages, presumably those contained in the claims file, were mailed to the RO in response. The RO also requested on two occasions that the Veteran provide these records, if possible. The Veteran gave a negative response to the first request, and did not respond to the second. The memorandum concluded that further efforts to obtain the records were futile. The Veteran was never provided with a written notice of the unavailability of these records that meets the requirements under 38 C.F.R. § 3.159(e). The RO did send the Veteran a July 2010 letter notifying the Veteran that they had been unable to locate his STRs, and that future efforts to locate them would be futile. The letter went on to request that the Veteran send them any copies of the STRs that he might have in his possession. However, this letter did not make any mention of his missing personnel records, nor did it request that the Veteran complete an NA Form 13055 (Request for Information Needed to Reconstruct Medical Data) and/or NA Form 13075 (Questionnaire About Military Service). The RO also failed to advise the Veteran of alternative documents that he may submit to support his claim. See VA Manual M2-1MR, Part III, Subpart iii, Chapter 2, Section E. Accordingly, a remand is required so that the Veteran can be given appropriate notice and informed of alternative evidence to support his claims, and to obtain the necessary information to attempt to recreate the information in the Veteran's missing file. The record reflects that the Veteran filed a worker's compensation claim related to his back in the early 2000s. These records are relevant to the issue of the Veteran's claim of service connection for a back disability, and so must be obtained. The Veteran's DD214 forms indicate that his last period of service, dated from June 23, 1986 to February 4, 1992, culminated in discharge as a result of a court martial. The form does not provide further detail about the character of the Veteran's discharge. If a former service member did not die in service, pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim was based was terminated by a discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.12 (2013). More information must be obtained to confirm the character of the Veteran's service. Accordingly, the case is REMANDED for the following action: 1. Contact Navy Personnel Command at the US Marine Corps Headquarters in St. Louis, Missouri, or any other appropriate department or agency other than the NPRC, and request the Veteran's STRs and personnel records. Make certain the Marine Corps is advised that the NPRC has no records in its possession. All efforts to obtain these records should be documented and any negative responses should be recorded in the claims file. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). 2. Following the completion of the above requested action, then provide the Veteran and his representative with proper notice that meets the requirement under 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e), including (a) the identity of the specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claim, and (d) that the Veteran is ultimately responsible for providing the evidence. Specifically, the Veteran must be notified of the unavailability of his STRs and personnel records, and informed of alternative sources of evidence he may provide to support his claim, including VA military files, statements from service medical personnel, buddy statements, employment physical examination reports, medical evidence from civilian/private medical providers by whom the Veteran was treated, pharmacy prescription records, etc. The Veteran and his representative must then be given an opportunity to respond. The Veteran must also be asked to fill out the NA Form 13055 (Request for Information Needed to Reconstruct Medical Data) and the NA Form 13075 (Questionnaire About Military Service). 3. After the Veteran has filled out and returned the NA Form 13055 and NA Form 13075 as requested above, the RO should contact the Records Reconstruction Unit of the NPRC, or any other appropriate agency or department, supply the Veteran's completed NA Form 13055 and 13075, and request an additional search from alternate sources, including the Surgeon General's Office (SGO) records, sick reports and any other sources. All efforts to obtain these records should be documented and any negative responses should be recorded in the claims file. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). 4. Contact the NPRC, Navy Personnel Command at the US Marine Corps Headquarters, and any other appropriate department or agency, and request records which specify the character of the Veteran's discharge on February 4, 1992. A specific request must also be made for documents related to the court martial that caused the Veteran's discharge. All efforts to obtain these records should be documented and any negative responses should be recorded in the claims file. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). 5. Contact the Veteran and request that he provide the name and address of all medical providers by whom he was treated in relation to the Workman's Compensation claim for back pain referenced in the March 18, 2009 treatment note from the VA Medical Center in Tampa. The Veteran should also identify his employer at the time, and provide their address. 6. Thereafter, the RO should contact the Veteran's employer at the time of the Workman's Compensation claim and obtain all employment records concerning the back injury and claim, and records of treatment the Veteran might have received in relation thereto. Authorization necessary to obtain such records should be requested from the Veteran. 7. Obtain the Veteran's Workman's Compensation records from the appropriate state agency, to include any medical reports associated with it. 8. After completing the above actions, and if any new evidence is associated with the claims file, the RO must readjudicate the Veteran's claims on appeal, taking into consideration any newly acquired evidence submitted. If any of the claims remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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 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. 2013). _________________________________________________ U. R. POWELL 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).