Citation Nr: 1801975 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-14 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a right index finger disability ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel INTRODUCTION The Veteran reported service from 1980 to 1984, including National Guard service. This matter came before the Board of Veterans Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In October 2015, the Board remanded this matter for further evidentiary development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The United States Court of Appeals for Veterans Claims ("the Court") has held that a remand by the Board imposes a duty on the Secretary of Veterans Affairs to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). It further instructed that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Id. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. The October 2015 Board remand instructed the AOJ to take several steps to develop the evidentiary record regarding both the Veteran's military service and any treatment received for his right hand disability. The Board notes that the orders to obtain Social Security records and provide a VA examination have been complied with. However, after finding that development efforts prior to the remand were insufficient, the October 2015 remand instructed that further attempts should be made to obtain the Veteran's service treatment records (STRs) and complete service personnel records and separation documents. The Board's review of the record indicates that no service treatment records or additional personnel records have been obtained and finds only one post-remand attempt to obtain personnel records. A December 2015 National Personnel Record Center (NPRC) report indicates that a request for the Veteran's entire personnel file was submitted and that personnel records could not be located based upon the information provided. As the remand orders instructed the AOJ to request and obtain complete service personnel records and separation documents, it is clear that new attempts to obtain records and verify the Veteran's service were required. It is not clear to the Board that one request to the NPRC serves to exhaust all avenues to verify the Veteran's service. In particular, the Board notes that the only contact to the New York National Guard was for medical records, not personnel records. Remand is therefore needed so that additional requests for personnel records and separation documents can be made. Stegall, 11 Vet. App. 268. The record does indicate that some additional attempts to obtain the Veteran's STRs were made. A December 2015 Report of General Information (RGI) documents phone calls to the Veteran, Moncrief Army Hospital, and the VA Records Management Center (RMC). The RGI further notes that, per the RMC, the records were located at the NPRC. A request for the records was then placed with the NPRC. The NPRC responded in November 2016 that no records could be identified based upon the information provided. While the Board notes these attempts to locate the Veteran's STRs, it finds that the claim file does not contain a formal finding of unavailability as required by the October 2015 remand orders. A May 2016 notice letter does state that the Veteran's STRs are unavailable and that further efforts to obtain them would be unsuccessful. However, the Board notes that this letter was sent prior to the November 2016 NPRC response. As the attempts to obtain the records were not complete at the time of the May 2016 letter, it cannot serve as a final formal finding of unavailability. The October 2015 remand instructed the RO to make as many requests a necessary to obtain the Veteran's records until it made a formal determination that the records either do not exist or that further efforts to obtain those records would be futile. See 38 C.F.R. § 3.159 (2017). As a proper formal finding was not made, the issue on appeal must be remanded to ensure compliance with those orders. Stegall, 11 Vet. App. 268. As noted above, a notice letter was sent to the Veteran in May 2016 listing the actions taken by VA explaining the actions taken to obtain the STRs. However, the Board notes that the only action listed on the letter that occurred after the Board's remand was the phone call made to the Veteran attempting to verify dates of treatment. The letter does not mention the contacts with Moncrief Army hospital, the ROM or the NPRC. The letter also does not inform the Veteran that he is ultimately responsible for providing the evidence, as required by the remand orders. These notice defects should be remedied upon remand. The Board also notes that in the case of missing service records, heightened VCAA notice is required that specifically addresses alternative sources of evidence the Veteran may submit in lieu of the missing records in order to support his claims. When service records are lost or missing or destroyed, in conjunction with a heightened duty to assist, VA must inform the Veteran that he can submit "alternative" sources in place of his missing service records. See Washington v. Nicholson, 19 Vet. App. 362, 369-370 (2005); see also Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). Thus, a remand is required for the AOJ to provide the Veteran with a VCAA letter advising the Veteran of what alternative evidence he can submit in place of any missing service records. While the Board notes that a VA examination was provided, the examiner was unable to give a medical opinion due to the absence of the STRs. A new examination should therefore be obtained on remand if STRs or other alternate evidence submitted by the Veteran are obtained and associated with the file. Accordingly, the case is REMANDED for the following action: 1. Request and obtain complete service personnel records pertaining to the Veteran from the appropriate agency. Verify all periods of active duty, active duty for training, and inactive duty for training. Requests should be made to the RMC and NPRC which contain the approximate dates of service and identify that the Veteran served with the New York Army National Guard. All attempts to obtain such records should be clearly documented in the claim file. If it is determined that such records are unavailable, a formal finding of unavailability should be made and associated with the claim file. 2. Request, from all appropriate agencies, to include RMC and NPRC, the Veteran's complete service treatment records, including any records of treatment from Montcrief Army Hospital. All attempts to obtain such records should be clearly documented in the claim file. If it is determined that those records do not exist or are otherwise unavailable, a formal finding of unavailability should be made and associated with the claim file. 3. If any records cannot be obtained, provide the Veteran with a proper notice that meets the requirements under 38 U.S.C. § 5103(A)(b)(2) (2012) and 38 C.F.R. § 3.159(e) (2017) and includes (a) the identity of 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. Such notice should also inform the Veteran of alternative sources of evidence that may be submitted in place of his missing service records. 4. If service treatment records are obtained or other alternative evidence is provided by the Veteran, schedule the Veteran for a new VA examination to determine the nature and etiology of any right hand disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current right hand found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service. In providing the opinion, the examiner should consider and discuss the Veteran's lay statements regarding the onset and persistence of his symptoms. 4. The examination reports must be reviewed to ensure they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. 5. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. 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). This matter must be afforded expeditious treatment. The law requires that all issues 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. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).