BVA9400343
DOCKET NO.  91-46 953     )       DATE
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THE ISSUES

1.  Entitlement to service connection for a back disability.

2.  Entitlement to service connection for heart disease.

REPRESENTATION

Appellant represented by: Sandra K. Meadows, Attorney-at-Law

WITNESSES AT HEARING ON APPEAL

Appellant and sister

ATTORNEY FOR THE BOARD

C.M. Flatley, Associate Counsel

INTRODUCTION

The veteran served on active duty from May 1944 to December 1946.

By Department of Veterans Affairs (VA) regional office (RO) rating
decisions dated in November 1956 and June 1985, entitlement to
service connection was denied for a back disability and for heart
disease, respectively.  The veteran received timely notification of
each determination and no appeal was perfected from either decision.
Accordingly, the RO decisions became final, and the veteran's claim
of entitlement to service connection for a back disability and heart
disease will be reopened only upon the submission of new and material
evidence.  Manio v. Derwinski, 1 Vet.App. 140, 145(1991), Colvin v.
Derwinski, 1 Vet.App. 171, 174(1991); 38 U.S.C.A. §§ 5108, 7105 (West
1991), 38 C.F.R. § 3.156(a)(1993).

The veteran's case initially came before the Board of Veterans'
Appeals (Board) on appeal from a March 1990 rating decision of the
Montgomery, Alabama, RO, which essentially determined that the
evidence presented by the veteran in an attempt to reopen his claim
of entitlement to service connection for a back disability and heart
disease was not sufficient to change the outcome of the prior denial
of such benefits.  Notice of disagreement for this action was
received in September 1990 and the statement of the case was issued
in January 1991.  The veteran's substantive appeal was received in
March 1991.  In September 1991, the veteran and his sister appeared
and offered testimony at a personal hearing conducted before an RO
hearing officer.  The case was initially received and docketed at the
Board in October 1991.  The American Legion, the veteran's accredited
representative at that time, submitted written argument to the Board
in January 1992.

We note that in its adjudication of the veteran's case, the RO
reviewed all of the evidence of record and, essentially, reopened the
veteran's claim of entitlement to service connection for a back
disability and heart disease.  Upon review of the record, the Board
concludes that, consistent with the principles enunciated in the
United States Court of Veterans Appeals (Court) decisions set forth
above, new and material evidence sufficient to reopen the veteran's
claim has been submitted; a de novo review of his case, therefore, is
appropriate.  We note that after conducting such a review of the
veteran's claim in April 1992, entitlement to the benefits sought was
denied by the Board.

The veteran appealed the Board's April 1992 decision to the Court,
and in July 1993, a joint motion for remand was submitted by the
veteran and the Secretary of the Department of Veterans Affairs.  In
July 1993, the Court vacated the Board's decision and remanded the
case to the Board for compliance with the motion for joint remand.

REMAND

At issue in this case is the veteran's claim that he sustained a back
injury in approximately July or August 1945 while serving in Okinawa,
Japan.  Review of the claims file reflects that at the time of the
injury, he was assigned to the 67th Chemical Company, and the veteran
reports that he received treatment at the 69th Field Hospital in
Okinawa, Japan.  The veteran has also noted that remedial treatment
for the injury extended from July to October 1945.  Previous attempts
to obtain service medical records have failed to produce evidence of
the veteran's back injury.  Review of the record, however, indicates
that information used in the records search may have been incomplete
or incorrect.  Further research, therefore, is indicated.

In addition, although a report obtained from the Surgeon General's
Office (SGO) contains a service number identical to the veteran's,
corresponding identifying information clearly shows that the
information supplied on the report does not pertain to him.

In its joint motion for remand, the parties stressed that the search
for pertinent data should be repeated using specific identifying
information and the scope expanded to include other alternate sources
such as in-service morning reports.  It was also noted that post-
service data, including records from the VA Medical Center in
Montgomery, Alabama, should be sought.  The veteran has also
indicated that in 1946, he provided his commanding officer at Camp
Shelby, Mississippi, with a letter from his family physician
referable to his heart disorder.  Although the veteran later appears
to question why the letter is not of record, testimony offered at his
personal hearing indicates that he had earlier reported that the
letter was destroyed by the commanding officer.  Overall, we conclude
that an attempt to confirm whether the letter currently exists is
warranted.

Lastly, as indicated above, development of the veteran's case in
large part involves a further search for service records.  To this
end, we stress that compliance with the provisions of the VA
Adjudication Procedure Manual M21-1 (M21-1), Part III, Chapter 4,
Request for Service Medical Records, particularly §§  4.02b, c;
4.03a; 4.04; 4.05; 4.07; and 4.08, is indicated.  For the reasons
noted above, therefore. and consistent with the Court's instruction,
this case is REMANDED for the following:

1.  Using standard development procedure and M21-1 Part
III, Chapter 4, §§ 4.04e(2), 4.07a, and 4.08d as guides,
the RO should request the following information from the
veteran:

(a) any additional information as to his unit
assignment at the time of the injury, in addition to
the 67th Chemical Company (battalion, detachment,
etc.);

(b) whether the letter claimed by the veteran to
have been provided by his family physician in 1946
was destroyed or whether it may still exist;

(c) the names and addresses of any private
facilities and physicians from whom he received
pertinent treatment, in addition to those noted
herein, and the approximate dates of treatment,
including treatment reportedly received by the
veteran at the Gulf Coast Community Hospital and
from Winston Edwards, M.D., whose last recorded
address was Highway 231, Wetumka, AL; as
appropriate, authorization for the release of
information should be obtained;

(d) confirmation of the approximate dates of
treatment received at the Montgomery and Birmingham,
Alabama, VA Medical Centers, the identification of
any additional VA Medical Centers, and the dates of
pertinent treatment at such facilities.

The RO should then attempt to obtain the records
associated with information supplied by the veteran both
on remand and as noted in the file, particularly with
regard to his treatment at the VA Medical Centers in
Montgomery and Birmingham, AL.  Authorization for the
release of information should be secured, as appropriate,
and any records obtained should be added to his claims
folder.

2.  The RO should request an additional search for service
records, using specific information reported in the record
and supplied by the veteran.  In keeping with M21-1, Part
III, Chapter 4, the records sought should include the
veteran's individual health record and clinical records
(regarding the veteran's reported hospitalization and
treatment of a back disability) and, if applicable,
personnel records, and should refer to specific
identifying information, including the veteran's service
number, social security number, and any units, including
the 67th Chemical Company, with which the veteran may have
served, consistent with the provisions of M21-1, Part III,
Chapter 4, § 4.08a.  Any records obtained should be
associated with the veteran's claims folder.

3.  The RO should attempt to obtain copies of morning sick
reports associated with the veteran's unit recorded from
July to approximately October 1945 in accordance with M21-
1, Part III, Chapter 4, § 4.08d; all available necessary
information should be provided.  Any records obtained
should be associated with the veteran's claims folder.

4.  The RO should again attempt to obtain from the SGO an
extract of the veteran's claimed hospitalization in
approximately July 1945 in accordance with the provisions
of M21-1, Chapter 4, § 4.05.  In its request, it should be
emphasized that the prior response received from the SGO
did not pertain to the veteran, although the service
number was correct.  In addition, it should be noted that
an Addendum file became available in May 1990, subsequent
to the SGO response currently on file which was processed
in October 1989.  M21-1, Part III, Chapter 4, § 4.05.  Any
records obtained should be associated with the veteran's
claims folder.

5.  The RO should attempt to obtain records of treatment
claimed by the veteran from O.E. Bell, M.D., Rocky Mount,
North Carolina, from 1953 through at least 1956.  Any
records obtained should be associated with the veteran's
claims folder.

6.  The RO should then review the veteran's claim in light
of the additional evidence, as well as pertinent law,
regulations, and Court decisions.  If a denial of the
veteran's claim is continued, the veteran and his attorney
should be provided with a supplemental statement of the
case which includes a recitation of all additional
pertinent evidence and law and regulations and a full
discussion of action taken on the veteran's claim,
consistent with the Court's instruction in Gilbert v.
Derwinski, 1 Vet.App. 49 (1990).  Reasonable response time
should be allowed.

The case should then be returned to the Board, if in order, after
compliance with all customary appellate procedures.  No action is
required of the veteran until he is so informed.  The Board intimates
no opinion as to the ultimate decision warranted in this case,
pending completion of the requested development.

BOARD OF VETERANS' APPEALS
WASHINGTON, D.C.  20420

*
                                              HARRY M. McALLISTER, M.D.

          J. U. JOHNSON

*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.

Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of
Veterans' Appeals is appealable to the United States Court of
Veterans Appeals.  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) (1992).