93 Decision Citation: BVA 93-00731 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-04 736 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for Parkinson's disease. 2. Entitlement to service connection for essential tremor. REPRESENTATION Appellant represented by: Timothy C. Terrill, Attorney. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Engle, Associate Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (the Board) on appeal from a decision on August 16, 1989, from the Denver, Colorado, Regional Office (VARO). The statement of the case was issued on December 12, 1989. A hearing was held on December 21, 1989. The substantive appeal was received on December 22, 1989. The appellant was represented before the Department of Veteran's Affairs (VA) by Disabled American Veterans. The Board denied entitlement to service connection for Parkinson's disease on September 21, 1990. The appellant through his newly retained private attorney, Timothy C. Terrill, Esq., duly appealed the Board's decision to the United States Court of Veterans Appeals (hereinafter "the Court"). In January 1992, Counsel for the Secretary submitted a motion for remand and to stay further proceedings in order for further evidentiary development and readjudication of the claim. In February 1992, Counsel for the appellant submitted a response to the appellee's motion for remand and to stay further proceedings, requesting that the Court reverse the Board's decision, or alternatively to remand for further evidentiary development and readjudication of the claim. In a memorandum decison dated July 14, 1992, the Court granted the Secretary's motion for remand. The Board's September 21, 1990 decision was vacated and the record was remanded to the Board for readjudication, in accordance with the Secretary's motion, on the basis of all evidence and material of record, and issuance of a new decision supported by an adequate statement of reasons and bases. The Court retained jurisdiction over this case. [citation redacted]. REMAND In its memorandum decision, the Court has remanded the case to the Board for further evidentiary development and readjudication. In particular, the Court indicated that remand is required to allow the Board to make findings as to the credibility and probative value of all evidence of record, including testimony and lay evidence, and to make findings of fact as to whether the appellant's in-service tremors are related to Parkinson's disease. Gilbert v. Derwinski, 1 Vet.App. 49, 59 (1991); Ohland v. Derwinski, 1 Vet.App. 147, 149-50 (1991). The Court further noted that the Board is required to further develop the evidence, as necessary, pursuant to VA's statutory duty to assist claimants. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1991). Our review of the record indicates that in July 1980 VARO requested the appellant's service medical records from the National Personnel Records Center (NPRC), in St. Louis, Missouri. The response from NPRC indicated that no service medical records were found and that they were apparently destroyed by the fire in 1973. M21-1, Part III, 4.06. A second request to NPRC for the appellant's service medical records was made in August 1988. It was noted that a National Archives and Records Administration Form 13055 was included which provided specific information relating to the treatment dates, organization to which the appellant was assigned at the time of treatment and the name and location of the treatment facility. The response from NPRC indicated that no service medical records were located; however, a request for a search of the available Surgeon General Office reports pursuant to M21-1, Part III, 4.05, recovered one hospital extract which noted that the appellant was treated for influenza in March 1953, at Fitzsimmons Army Hospital. Although the appellant continues to demand a search for the records of the 110th Station Hospital, Vienna, Austria, for the years 1950 and 1951, that facility has been named in a request for records without success. Since the claimed treatment was reported to be on an outpatient basis, those records would have been associated with the individual health records rather than the hospital clinical records. M21-1 Part III, 4.04 (c)(2)(a)(c). It is most likely that such records were lost in the 1973 fire, as reported twice by NPRC. M21-1, Part III, 4.02 (b)(2)(c). However, at the time of separation from the service, a history of hospitalization in 1949 for treatment of scabies was recorded. Since this would apparently have been at the 110th Station Hospital, Vienna, Austria, and the approximate date is known, the clinical records of this inpatient treatment may be at NPRC. In addition, there may be additional private and VA medical records that have not been obtained. We note that the appellant reported admission in April 1980 to the Cedar City Alcohol Rehabilitation Center, with subsequent admission to a VA Alcohol Program at Salt Lake City, Utah, in May or June 1980. Hence, a request should be made for these records. Any leads that develop, as to medical records in the period from 1957 to 1980, should be followed. The appellant has named five individuals who knew him during his military service, either while serving in Europe or beginning in 1953 in Colorado. The address of one individual, [redacted], was provided at the time of his claim in 1981. That individual should be located, if the address remains correct or a current address is reasonably ascertainable. He should be provided VA Form 21-4138, and asked to submit a statement of his recollections regarding the appellant beginning in 1953. In the alternative, a field examiner may interview Mr. [redacted]. As to the other named individuals, VA is unable to search for an individual and then, in effect, provide the address to another. However, the appellant and his representative should be afforded a reasonable opportunity to use any means at their disposal to discover current addresses, and if any addresses are supplied to VA, statements should also be solicited from those individuals. We note that the Court has indicated that with respect to the VA's duty to assist, "... the duty to assist is just what it says; a duty to assist, not a duty to prove a claim with the claimant only in a passive role. Duty to assist is not license for a fishing expedition to determine if there might be some unspecified information which could possibly support a claim." Gobber v. Derwinski, 2 Vet.App. 470 (1992). If the search for the named individuals is not productive, an interview with [redacted], whose address and 1983 statement are of record, should be conducted to elicit relevant recollections regarding the appellant during the period from 1953 to 1957. SINCE THIS IS A COURT OF VETERANS APPEALS REMAND, AND THE COURT HAS RETAINED JURISDICTION OVER THE CASE, ALL ACTIONS ON THE PART OF VA MUST BE EXPEDITED. In view of the above, this case is REMANDED for the following: 1. VARO should request any available inpatient hospitalization clinical records for the treatment of scabies in 1949 at the 110th Station Hospital, Vienna, Austria, from the NPRC pursuant to M21-1, Part III, 4.02(b)(2)(b), 4.04(c)(2)(c). 2. Records of treatment at the Cedar City Alcohol Rehabilitation Center in 1980 and treatment reports from the Salt Lake City, Utah VA Alcohol Program dated in 1980 should be requested. In addition, any leads that develop as to medical records for the period from 1957 to 1980 should be followed. 3. The address for [redacted] reported on the VA Form 21-526 received in July 1981, should be verified and, if correct or if it is reasonably ascertainable, he should be provided VA Form 21-4138, and asked to submit a statement of his recollections regarding the appellant beginning in 1953. Alternatively, a field examiner may interview Mr. [redacted]. If any additional addresses are supplied by the appellant, statements should be solicited from the named individuals. 4. If the search for the named individuals is not productive, an interview with Gene F. Serafine, whose address and 1983 statement are of record, should be conducted to elicit relevant recollections regarding the appellant during the period from 1953 to 1957. 5. The appellant's attorney indicated in correspondence to the Board, dated in November 1992, that he was going to submit a statement from Dr. Meredith. A reasonable opportunity should be provided for the submission of that new medical evidence. Upon completion of the requested development, the case must be returned to the Board as soon as possible, regardless of disposition. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * (Member temporarily absent) MATTHEW J. GORMLEY, III KENNETH R. ANDREWS, JR. *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member.