Citation Nr: 21065788
Decision Date: 10/27/21	Archive Date: 10/27/21

DOCKET NO. 18-19 448
DATE: October 27, 2021

REMANDED

Entitlement to service connection for rheumatic fever is remanded.

Entitlement to service connection for rhinitis and hay fever is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1959 to March 1962.  He died in September 2020.  The appellant is his surviving spouse and has been substituted as the claimant in this case.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  

The Board remanded the issue for further development in March 2019.  The Board denied the claims in a June 2020 decision.  The appellant appealed that decision to the Court of Appeals for Veterans Claims (Court).  In an April 2021 Joint Motion for Remand (JMR) the parties agreed that the Board's decision should be vacated.  In April 2021, the Court vacated the Board's decision, and remanded the issue to the Board for action consistent with the JMR.

The parties to the Joint Motion for Remand agreed that the Board failed to address the absence of an entrance examination report and whether efforts to obtain the report would be futile. The parties noted that the Board relied on a November 1959 Report of Medical History which noted a history of rheumatic fever and hay fever.   If an entrance examination report cannot be located, then the Board must address whether the presumption of soundness attached.

A notation on the Report of Medical History, alone, is not sufficient to establish a pre-existing condition as required.  See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b).  A review of the claims file reveals that the November 1959 Report of Medical Examination is not associated with the record.  The RO has not recognized this potentially missing record or made attempts to locate it, and this needs to be accomplished on remand by making a formal finding of unavailability and providing the Veteran with notice of any unavailable service treatment records.  

The matters are REMANDED for the following action:

Request through official sources the Veteran's November 1959 Report of Medical Examination.  If such records cannot be obtained, a formal finding of whether further attempts to request the records would be futile must be made and the appellant notified of such.

 

 

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Bonnie Yoon, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.