Citation Nr: 1340929 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 10-47 260A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a right knee disability, to include arthritis. 2. Entitlement to service connection for residuals of cervical spine vertebral fractures. REPRESENTATION Appellant represented by: Marine Corps League WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1976 to September 1979 and from January 1991 to March 1991. The Veteran has also had Reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2005 (right knee) and September 2006 (cervical spine vertebral fractures) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board notes that the Veteran did not submit a timely Form 9 appeal. The Veteran has explained that he never received the statement of the case because it was sent to the wrong address. In an undated memorandum decision, the RO determined that it would consider the Veteran's representative's December 2010 written correspondence as a timely substantive appeal in lieu of a Form 9. The Board agrees with the RO's decision and takes jurisdiction over the claims, although the December 2010 correspondence was not received within 60 days of issuance of the February 2009 statement of the case (SOC). As such, the Board finds that, in light of the good-cause waiver of the timeliness requirement for receipt of a substantive appeal within 60 days of issuance of the SOC (when more than one year from the date of notice of the rating decision at issue), the rating decisions on appeal are as stated above. In this regard, the Board finds that a statement received in October 2005 may reasonably be construed as a timely notice of disagreement with the September 2005 rating decision denial of service connection for a right knee disability. The Board also finds that a November 2006 statement may be reasonably construed as a timely notice of disagreement with the September 2006 rating decision denial of service connection for residuals of cervical spine vertebral fractures. 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 Veteran has claimed that his disabilities are the result of a motor vehicle accident he experienced while returning home from a September 1986 U.S. Army Reserves drill. Under VA regulations, in addition to a disability incurred in or aggravated by active duty, service connection may be granted when the individual concerned was disabled or died from a disease or injury, incurred or aggravated in the line of duty during a period of active duty for training (ACDUTRA), and when the individual became disabled or died from an injury incurred or aggravated in line of duty during a period of inactive duty training (INACDUTRA). 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6. A Veteran may also be service connected for an injury or, (in the case of ACDUTRA and/or a disease), incurred while proceeding directly to or returning directly from ACDUTRA or INACDUTRA training. 38 C.F.R. § 3.6(e). ACDUTRA includes full time duty performed by members of the National Guard of any state or the Reservists. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d). Therefore, the Veteran has claimed service connection for disabilities arising out of an incident of ACDUTRA or INACDUTRA, and so he should be apprised as to what evidence is required to substantiate a claim for service connection based on a period of ACDUTRA or INACDUTRA. The November 2005 and March 2006 VCAA notice letters fail to do so. Upon remand, the AOJ should send the Veteran a VCAA notice letter that notifies the Veteran and his representative of any information or lay or medical evidence not previously provided that is necessary to substantiate his service connection claims based on ACDUTRA and INACDUTRA service. The notice should further indicate what information or evidence should be provided by the Veteran and what information or evidence VA will attempt to obtain on the Veteran's behalf. See 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159. The Board notes that although service treatment records (STRs) for the Veteran's service in the Army Reserves have been associated with the claims file, these records do not indicate the specific dates of the Veteran's ACDUTRA or INACDUTRA service. In June 2006, the RO attempted to verify the Veteran's line of duty for the date of the accident as well as the Veteran's Reserve training dates, but received an unsatisfactory answer. The RO did not make any further attempts to obtain the necessary information or records, nor did it notify the Veteran of the inability to obtain these records in accordance with 38 C.F.R. § 3.159. Accordingly, the Board finds that a remand is necessary to obtain the specific dates of active service, ACDUTRA, and /or INACDUTRA, particularly as they relate to the September 1986 motor vehicle accident. If the Veteran was on ACDUTRA or INACDUTRA at the time of the motor vehicle accident, a VA examination should be scheduled to obtain an opinion as to whether it is at least as likely as not that the Veteran's disabilities are the result of that accident, or any other incident of service. Finally, in the April 2013 hearing, the Veteran indicated that there were relevant medical records from Dr. Palivali that had not been associated with the claims file. The Board notes that there are some records from Dr. Palivali included in the claims file. The RO should contact the Veteran to inquire as to whether he still believes that there are any outstanding records from Dr. Palivali, and if so, then the RO should obtain them. Accordingly, the case is REMANDED for the following action: 1. Issue notice in compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§5102, 5103, 5103A, 5107 (West 2002) that advises the Veteran of the criteria for service connection based on any periods of ACDUTRA or INACDUTRA. Advise the Veteran of the definitions of the types of service and the types of evidence he may submit to substantiate his claim based on both types of service. This notice should also indicate what information or evidence should be provided by the Veteran and what information or evidence VA will attempt to obtain on the Veteran's behalf. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. 2. Contact the Veteran and inform him that treatment records from the office of Dr. Palivali, dated from March 2000 through April 2008, and January 2000 through February 2003 are included in the claims file. Reference the April 2013 hearing in which the Veteran stated that he was attempting to obtain records from Dr. Palivali, and ask whether the Veteran believes that there are any relevant records from Dr. Palivali that have not been associated with the claims file. If the Veteran states that he believes there are relevant records that have not been included in the claims file, obtain the proper authorization from the Veteran and request them from the office of Dr. Palivali. 3. Attempt to verify the specific beginning and ending dates of each period of the Veteran's ACDUTRA and INACDUTRA with the U.S. Army Reserves, from all appropriate sources, including the National Personnel Records Center (NPRC), Record Management Center (RMC), and a request of pay records from the Defense Finance and Accounting Service (DFAS) that indicate the Veteran's duty status for ACDUTRA and INACDUTRA. A specific request must be made as to whether the Veteran had ACDUTRA or INACDUTRA service on September 20, 1986. If this information is not available, obtain written confirmation of that fact. 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). If the RO is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claims; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2013). 4. After completing the above development, if the Veteran is found to have been engaged in ACDUTRA or INACDUTRA service on September 20, 1986, provide the Veteran with a VA examination to evaluate his service connection claims for degenerative arthritis of the right knee and residuals of a vertebral fracture. The claims file, including a copy of this remand, must be made available to the examiner for review, and the examiner should indicate that the claims file was reviewed in connection with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all patient records associated with the claims file and offer an opinion as to whether it is at least as likely as not that a right knee disability, to include arthritis, or residuals of cervical spine vertebral fractures, is/are related to any incident of active duty, ACDUTRA, or INACDUTRA (to include the September 1986 motor vehicle accident). The examiner should provide an explanation for all conclusions reached. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record (i.e. additional facts are required), or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. Thereafter, readjudicate the issues (service connection for degenerative arthritis of the right knee and service connection for residuals of cervical spine vertebral fractures). If any benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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 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). _________________________________________________ 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).