Citation Nr: 0727561 Decision Date: 08/31/07 Archive Date: 09/11/07 DOCKET NO. 05-08 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a psychiatric disability. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Elizabeth Jalley, Associate Counsel INTRODUCTION The veteran served on active duty from July 1956 to April 1958. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In February 2006, the Board remanded this case for additional development, and the case has been returned for further appellate review. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran's service medical records are unavailable, presumably having been destroyed in a 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. Where a veteran's service medical records are unavailable, the Board has a heightened duty to assist and obligation to explain its findings and conclusions, and must carefully consider the benefit of the doubt rule. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Further, there is no adverse presumption of service connection as a result of the loss of these records. Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). There is, however, an expanded duty to assist the veteran in obtaining evidence from alternate or collateral sources. Id. The Board believes that further evidentiary development is required. According to a January 1974 record from the Missouri State Mental Health Department, the veteran was terminated from the facility's active rolls because he had not been in contact with the clinic for approximately eight months. VA's prior records request asked for records from January 1, 1974, to December 31, 1974. Because any earlier medical records could potentially help establish the veteran's claim, the Board believes that another remand is warranted. The Board notes that the veteran's claims file contains a detailed account of the records requests that have been made, as well as of both the positive replies and the negative responses. Among these records is a September 2003 NPRC letter indicating that NPRC may be able to search alternate records sources if it is given the veteran's service number, the approximate dates (month, or season, and year) of each injury/illness, and the specific organizational assignments (company, battalion, regiment, division/squadron, group, wing, etc.) at that time. If such measures have not been taken, VA should request this information from the veteran and submit it to the NPRC so an alternate records search may be performed. The veteran should also be notified of the importance of other forms of evidence in establishing his claim, and that such evidence is especially important in situations where the veteran's service medical records are not available. Examples of alternative types of evidence include "buddy statements" from people with whom the veteran served, statements from friends and family members who knew the veteran before service or shortly thereafter, and letters that were written by the veteran during service. Personal statements from friends, family, or other servicemembers should include the writer's personal statements and observations with respect to what the veteran was like before, during and/or after service. Of particular importance are statements from individuals who can describe ways in which the veteran changed during this period. On remand, the veteran should be requested to submit this type of evidence. Accordingly, the case is REMANDED for the following action: 1. The veteran should be requested to provide the names, addresses, and approximate dates of treatment for any individuals or facilities that may possess additional records pertinent to his claim. After obtaining any necessary authorization from the appellant, the RO must obtain any outstanding medical records and associate them with the claims file. Specifically, the RO should obtain the veteran's authorization to request any records from the Missouri State Mental Health Department. (The Board notes that prior searches did not include requests for records from earlier than January 1, 1974.) The RO should also request any VA medical records that are not currently on file that relate to the veteran's claim. If any of the requested records do not exist or cannot otherwise be obtained, that fact should be noted in the claims file. 2. The veteran should be requested to provide his service number, the approximate dates (month, or season, and year) of his hospitalization, and the specific organizational assignments (company, battalion, regiment, division/squadron, group, wing, etc.) at that time. If not already done, this information should be submitted to the NPRC so that an alternate records search may be performed. 3. The veteran should be informed that he may submit other types of evidence, including "buddy statements" from fellow servicemembers, statements from friends and family who knew the veteran before service or shortly thereafter, and letters that were written while the veteran was in service, to support his claim. Personal statements from friends, family, or other servicemembers should include the writer's personal statements and observations with respect to what the veteran was like before, during and/or after service. Of particular importance are statements from individuals who can describe ways in which the veteran changed during this period. Any evidence received in response to this request should be associated with the claims folder. 4. After the above has been completed, and after any other development that is deemed appropriate, the RO must readjudicate the issue on appeal. If the issue on appeal continues to be denied, the veteran and his representative must be provided a supplemental statement of the case. The veteran must then be given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. 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 claim must be afforded expeditious treatment. The law requires that all claims 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.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2006).