Citation Nr: 1339196 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 10-25 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for type II diabetes mellitus. REPRESENTATION Veteran represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1967 to February 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). In July 2010, a hearing was held before a Decision Review Officer (DRO) at the RO. In February 2012, a Travel Board hearing was held before the undersigned. Transcripts of these hearings are associated with the Veteran's claims file. In May 2012, the Board determined that new and material evidence had been received to reopen the claim, and remanded the reopened claim on a de novo basis for additional development. The Board notes that it has reviewed both the Veteran's physical claims file and Virtual VA to ensure that the complete record is considered. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. REMAND The Board's May 2012 remand instructed the RO to complete the following instructions: (1) undertake exhaustive development to secure the Veteran's pay records from the Department of Defense Finance & Accounting Service (DFAS) to ascertain whether they show that he received in-country pay for service in Vietnam (and/or was paid in military scrip used in Vietnam); (2) arrange for corroboration of the service of the Veteran's fellow serviceman (R.N.) in the Republic of Vietnam based upon the submitted excerpts from his Enlisted Flight Training and Operational Log; (3) provide a certification and explanation for the record if any of the records sought above are unavailable; and (4) make a formal determination as to whether or not the Veteran served in-country in Vietnam prior to re-adjudicating the reopened claim. Regarding Instruction (1) above, the RO received a response from the DFAS in February 2013 which stated that the Veteran's pay records had been destroyed along with all other Navy active duty Leave and Earning Statements (LES) dating prior to January 1993. Thereafter, in compliance with Instruction (3) above, the RO notified the Veteran of the unavailability of his pay records in a February 2013 letter, and VA issued an official memorandum of unavailability of such records in March 2013. Regarding Instruction (2) above, the National Personnel Records Center (NPRC) verified in June 2012 that R.N. served in the Republic of Vietnam from July 1970 to September 1970. The RO never made a formal determination as to whether or not the Veteran served in-country in Vietnam at any time, including prior to re-adjudicating the reopened claim in a March 2013 supplemental statement of the case (SSOC). The RO must now accordingly comply with Instruction (4) above, taking into account the fact that the NPRC has verified that R.N. served in the Republic of Vietnam from July 1970 to September 1970. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (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). Accordingly, the case is REMANDED for the following: 1. The RO must a formal determination as to whether or not the Veteran served in-country in Vietnam, taking into account the fact that the NPRC has verified that his fellow serviceman (R.N.) served in the Republic of Vietnam from July 1970 to September 1970. 2. The RO should ensure that all development sought is completed (as specifically instructed), arrange for any further development suggested by additional evidence received, and then review the record and readjudicate the claim on appeal. If it remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. The Veteran 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 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. 2013). _________________________________________________ GEORGE R. SENYK 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).