Citation Nr: 0731670 Decision Date: 10/05/07 Archive Date: 10/16/07 DOCKET NO. 05-15 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disorder. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The veteran served on active duty from July 1945 to November 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. When this matter was previously before the Board in August 2006, it was remanded for further development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND The veteran seeks service connection for a low back disorder. This claim was initially denied by the RO in a December 1998 rating decision to which the veteran did not file a Notice of Disagreement. That rating decision, therefore, became final. The veteran filed a claim to reopen in August 2002. The RO sent him a letter in September 2002 informing him of the evidence required to reopen the claim. In October 2002 the RO informed him the claim was denied as no new and material evidence was received. The veteran filed the current claim for service connection in December 2003. The veteran indicated, in a properly completed NA Form 13055, that he was hospitalized while in service at the 594th AAFBU TAAFLD's base hospital in Topeka, Kansas, for a low back condition in November 1946 and that his back was x-rayed frequently during this hospitalization. Using the information supplied by the veteran, the RO has made unsuccessful attempts to obtain the veteran's service medical records or alternative records. The National Personnel Records Center (NPRC), St. Louis, Missouri, in response to the RO's requests, indicated that the records may have been destroyed in a fire at the Records Center in 1973. However, it is unclear from the record whether the search for alternative records, such as sick reports, was performed for the correct veteran, correct unit, correct social security number, or correct time frame. A notice from the NPRC indicates, in handwriting, that the records at the NPRC were searched for the service medical records of the veteran in 1946 in the 594th AAFBU, as identified by the veteran, and no records were found. However, the claims folder also includes a notice from the NPRC, NA Form 13076, indicating that the records at the NPRC were searched for morning and sick reports under a different name, with a different social security number, different unit, and different period of service than the claimant and that no records were found. This incorrect notice regarding the unavailability of records for the wrong veteran is cited and relied upon in the RO's March 2005 Statement of the Case. Pursuant to regulation, VA must make as many requests as are necessary to obtain relevant records from a federal department or agency. Those records include service medical records. VA will end its efforts to obtain records from a federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2) (2007). It is unclear to the Board, due to the continued inclusion of the notice regarding the wrong veteran and the continued association of this erroneous information with the current claim, whether the records at the NPRC were searched for the morning and sick call records for the correct veteran. On remand, the RO should advise the veteran that he can submit alternative forms of information in support of his low back disability claim. See Washington v. Nicholson, 19 Vet. App. 362, 370 (2005). Additionally, on remand, the RO should make another request for the correct veteran's service medical records from the NPRC, clinical records pertaining to in-patient treatment at the Base Hospital in September or October 1945 (see the veteran's original claim, VA Form 21- 526, dated in April 1998) as well as October and November 1946, and search the morning and sick call reports of the correct unit for October and November 1946 (see the NA Form 13055 signed in June 1998 and the Decision Review Officer Hearing Transcript at p. 2) for any indication of the veteran's reported treatment. Accordingly, the case is REMANDED for the following action: 1. Send the veteran a letter advising him that he may submit alternative forms of evidence, such as lay accounts of his in-service and post-service symptoms to corroborate his report of in-service complaint and/or treatment for low back disorder. This is to include "buddy statements" and letters written during service. 2. Use all available resources, to include the assistance of the National Personnel Records Center (NPRC) or other agency as appropriate, to obtain any outstanding records relating to the veteran's treatment at the 594th AAFBU TAAFLD's base hospital in Topeka, Kansas. This is to include September and October 1945 and October and November 1946 when the veteran reports to have been hospitalized for a low back condition. 3. Thereafter, the RO should readjudicate the veteran's claim. If the claim is reopened, the RO should take any other developmental action necessary, to include an examination, if deemed warranted. If the benefit sought on appeal is not granted, the RO should issue the veteran and his attorney a supplemental statement of the case and provide them an opportunity to respond. 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). _________________________________________________ S.S. TOTH 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) (2007).