Citation Nr: 0727135 Decision Date: 08/30/07 Archive Date: 09/11/07 DOCKET NO. 05-10 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for frostbite of the feet. 2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a veteran who served on active duty from September 1952 to September 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the benefits sought. Unfortunately, before determining whether there is new and material evidence to reopen the veteran's hearing loss and frostbite claims, they must be remanded to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. VA will notify the appellant if further action is required. REMAND The veteran claims entitlement to service connection for frostbite as a result of exposure to extreme cold temperatures while performing guard duty in a prisoner of war camp during his active duty service in Korea. In addition, he claims exposure to acoustic trauma as a result of exposure to rifle noise, small arms fire, heavy artillery, mortars, grenades, helicopters, aircraft engines, track vehicles, and tanks during his period of active duty service in Korea. Although the RO has made numerous attempts to obtain the veteran's service medical and personnel records, such records are not available for review and the National Personnel Records Center (NPRC) has replied that these records may have been destroyed by fire. In this regard, it is noted that, when service medical records are lost or missing, VA has a heightened obligation to satisfy the duty to assist. Under such circumstances, the United States Court of Appeals for Veterans Claims (Court) has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The veteran has provided information indicating that he completed basic training with the Eighth Infantry Division in 1953 and his written communications reflect that he went to Korea with this division and, when this division was returning home, he was transferred to the 24th Infantry Division, the fighting eagles, to complete his tour of duty in Korea. In light of the heightened duty to assist the veteran in the development of evidence favorable to his claim, the Board finds that further development with respect to the history of the units to which the veteran was assigned is necessary prior to further adjudication of his claims. Accordingly, the case is REMANDED for the following action: 1. Ask the veteran to provide additional information with respect to the units with which he served during his active duty service in Korea. Specifically, the veteran should identify the regiment in which he served within each unit as well as the dates of service with each unit. 2. After receipt of any additional information from the veteran, request a unit history and lessons learned for the units to which the veteran was assigned from the United States Army and Joint Services Research Center (JSRRC). At a minimum, request a unit history and lessons learned for the Eighth Infantry Division and the 24th Infantry Division to determine whether these units were in Korea during the dates identified by the veteran and, if in Korea during the specified dates, the duties performed by each unit. 3. After ensuring proper completion of all development, the RO should readjudicate the issues on appeal. If the dispositions remain unfavorable, the RO should furnish the veteran and his representative with a supplemental statement of the case and afford them the applicable 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). _________________________________________________ J. A. MARKEY Acting 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).