Citation Nr: 1421189 Decision Date: 05/12/14 Archive Date: 05/21/14 DOCKET NO. 11-08 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for cervical myelopathy, claimed as a broken neck. 2. Entitlement to service connection for an acquired psychiatric disorder. ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran (appellant) served on active duty from August 1983 to June 1986. He also had unverified duty with the Mississippi National Guard from June 1986 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for cervical myelopathy, claimed as broken neck, and a nervous disorder. He also was denied entitlement to nonservice-connected pension. The Veteran did not perfect the appeal on the issue of basic eligibility for pension benefits within the requisite period, and the claim is final. Therefore, it is not reflected on the title page. The issue of service connection for irritated feet being referred has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required on his part. REMAND The appellant maintains that service connection is warranted for cervical myelopathy, claimed as a broken neck, and a nervous disorder, based upon service incurrence. The claims folder does not contain the appellant's service treatment records and multiple searches by the RO for the service treatment records were unsuccessful, leading the RO to execute a February 2009 memo containing a formal finding that his service treatment records were unavailable for review. The Board notes that when service treatment records are lost or missing, VA has a heightened duty to assist the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Where service medical evidence is unavailable, the heightened duty to assist includes the obligation to search for alternate methods of proving service connection. See Moore v. Derwinski, 1 Vet. App. 401 (1991). VA regulations do not provide that service connection can only be shown through medical records, but rather allow for proof through lay evidence." Smith v. Derwinski, 2. 147, 148 (1992). The appellant should be informed of secondary sources that can be used to substantiate his claims. Additionally, it is important to note that the appellant served in the Mississippi National Guard. It is not clear from the record whether he had any active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). His service as to ACDUTRA and INACDUTRA should be verified. Reporting only points he received is not helpful in this regard. Accordingly, the case is REMANDED for the following action: 1. The Appeals Management Center (AMC)/RO should also advise the appellant that he can submit alternate evidence to support his claims for service connection. This evidence may take the following forms: statements from service medical personnel, "buddy" certificates or affidavits, employment physical examinations, medical evidence from hospitals, clinics, and private physicians by which or by whom the appellant may have been treated for his alleged disorders, especially soon after discharge from service, letters written during service, and insurance examinations. The appellant may submit any other evidence he deems appropriate. If he needs assistance in obtaining medical records, he should provide the AMC/RO with the names and addresses of the medical providers, and forms providing for the release of such information should be forwarded to the Veteran for his signature. 2. Contact the Mississippi Army National Guard unit wherein the appellant served, and obtain all personnel records during his period of ACDUTRA and INACDUTRA, if any, and associate those records with the claims folder. The RO should also attempt to verify whether the Veteran had ACDUTRA or INACDUTRA at any time from June 1986 to June 1991. Points are not helpful in this regard. If no service records can be found, or if they have been destroyed, that fact should be so noted in the claims folder. 3. Following completion of the above and any further development deemed warranted, readjudicate the issue of service connection for cervical myelopathy and an acquired psychiatric disorder on appeal and, thereafter, if any claim on appeal remains denied, the appellant should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and discussion of all pertinent regulations. An appropriate period of time should be allowed for response. 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). These claims 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 (CONTINUED ON NEXT PAGE) appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ BARBARA B. COPELAND 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).