Citation Nr: 0720383 Decision Date: 07/06/07 Archive Date: 07/18/07 DOCKET NO. 99-05 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Yim, Associate Counsel INTRODUCTION The veteran served on active duty from January 1976 to January 1979. This case is before the Board of Veterans' Appeals (Board) on appeal of a September 1998 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2006, the Board denied service connection for a right shoulder disability; it granted service connection for a disability of the feet. On further appeal, in March 2007, the U.S. Court of Appeals for Veterans Claims (Court) vacated the Board decision denying service connection for a right shoulder disability and remanded the matter for readjudication consistent with the parties' Joint Motion for an Order Vacating and Remanding the Board Decision in Part and Incorporating the Terms of This Remand. REMAND The veteran does not report a specific incidence of physical trauma or injury to the right shoulder. Rather, he contends that he had a right shoulder disability since active duty, manifested by recurrent "popping" and dislocation of the shoulder joint since 1976. Multiple attempts to locate the veteran's service medical records associated with active duty have been unsuccessful. The unavailability of service medical records due to apparent loss or destruction while they are in government custody is not due to any fault on the veteran's part. In such circumstances, the Board has a heightened duty to explain the reasons and bases for its decision and to consider employment of the benefit-of-reasonable doubt rule. See, e.g., O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). A February 2003 letter informed the veteran that he may submit his "own statements or statements from other people describing [his] physical . . . disability symptoms." The July 2000 Board hearing transcript (see pp. 8, 10) shows that the veteran indicated that his wife and a friends had personal knowledge of his recurrent right shoulder "popping," and Veterans Law Judge Phillips alluded to the importance of alternative forms of evidence (e.g., employer statements; layperson statements) if further development did not yield the veteran's service medical records. However, the veteran did not subsequently proffer statements from his wife or friends, and VA did not explicitly inform him that alternative evidence may be in the form of layperson statements. In the Joint Motion, the parties agreed that the veteran should be notified that he can submit alternative forms of evidence to buttress his assertion as to persistent right shoulder dislocation and "popping" since service. "[I]n cases such as this where the service medical records are unavailable, VA is required to notify Appellant that he can submit alternative forms of evidence to support his claim, including 'buddy statements' from fellow service members as to the incurrence of his right shoulder disability. See Washington v. Nicholson, 19 Vet.App. 362, 370-71 (2005)." Even though the veteran wrote, as recently as in April 2007, that he has nothing else to submit in support of his claim, the Joint Motion requires the Board to remand this appeal so that the veteran can be explicitly notified that he can submit alternative forms of evidence to support his claim, including "buddy statements." This will also give the veteran an opportunity to receive the notice required by Dingess v. Nicholson, 19 Vet. App. 473 (2006) (as the degree of disability and effective date of the disability are part of a claim for service connection, VA has a duty to notify claimants of the evidence needed to prove those parts of the claim). Accordingly, this appeal is REMANDED to the RO via the Appeals Management Center, in Washington, D.C., for the following actions. VA will notify the veteran if further action is required. 1. Notify the veteran that that he can submit alternative forms of evidence to support his claim, including "buddy statements" from fellow service members as to the incurrence of his right shoulder disability. 2. Provide the veteran with the notice required by Dingess v. Nicholson, 19 Vet. App. 473 (2006) (as the degree of disability and effective date of the disability are part of a claim for service connection, VA has a duty to notify claimants of the evidence needed to prove those parts of the claim). 3. As the record reflects VA medical treatment, ensure that any missing, and more contemporaneous, VA medical records concerning the veteran's right should disability are associated with the claims file. 4. Thereafter, readjudicate the claim based on a review of the entire record. If the benefit sought remains denied, then issue a Supplemental Statement of the Case and afford the veteran and his representative an opportunity to respond to it. Then, if in order, return the appeal to the Board for further review. The veteran has the right to submit additional evidence and argument on the matter(s) remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). All claims remanded by the Board or the Court for additional development or other appropriate action must be handled expeditiously. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2006).