Citation Nr: 0729391 Decision Date: 09/19/07 Archive Date: 10/01/07 DOCKET NO. 06-10 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for venous insufficiency of the right lower leg. 2. Whether new and material evidence has been received to reopen a claim for service connection for burns to the face, eyes and left hand. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD M. Harrigan, Associate Counsel INTRODUCTION The veteran served on active duty from July 1956 to July 1958. The veteran also had unverified service in the Tennessee Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from an April 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied service connection for right leg pain due to chronic venous insufficiency (claimed as right leg condition) and declined to reopen the veteran's service connection claim for a residuals of burns to the eye, face and left hand. In January 2007, the veteran testified at a videoconference hearing before the undersigned Veterans Law Judge; a copy of this transcript is associated with the record. The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The duty to assist includes obtaining medical records and a medical examination and opinion when necessary for an adequate determination. See Duenas v. Principi, 18 Vet. App. 512 (2004). The National Personnel Records Center (NPRC) has indicated that the veteran's service medical records from his time in the Army were destroyed in the fire in St. Louis in 1973. Given the absence of such records, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (the BVA has a heightened duty in a case where the service medical records are presumed destroyed). The veteran is attempting to reopen his previously denied claim for service connection for burns to the face, eyes and left hand. To reopen a claim, new and material evidence must be provided. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2006). The Board notes that the duty to assist includes obtaining medical records and VA treatment records when considering whether to reopen a previously denied claim. 38 C.F.R. § 3.159(c) (1), (2), and (3). At his January 2007 videconference hearing, the veteran indicated that he is undergoing treatment for the damage done to his eye as a result of his claimed in-service injuries. On remand, the AOJ should obtain these records. The veteran further contends that he injured his leg while on active duty for training (ACDUTRA) while in the Tennessee National Guard in 1976. It appears that the record does not contain all of the veteran's medical records from his National Guard service. The RO has made several attempts to locate the veteran's National Guard medical records, but the Board is of the opinion that, in order to fulfill the duty to assist, the AOJ should again attempt to obtain these files. In December 2005, the AOJ sent a request to the NPRC for the veteran's records for his period of active duty from May 1975 to June 1975, and received a response that same month that no search was possible based on the information furnished, that the complete unit at the time of the allegation would need to be furnished. The veteran, in a May 2004 written statement and at his January 2007 videoconference hearing, alleged that this injury occurred in 1976. His National Guard personnel records reflect that he had active duty for approximately two weeks at the end of June and the beginning of July 1976. On remand, the AOJ should request the veteran's National Guard records from all of his periods of ACDUTRA. In addition, it does not appear that the RO attempted to obtain the veteran's National Guard records from the Tennessee National Guard Joint Forces Headquarters, as was suggested in an October 2004 letter from the Department of the Army, HQ 1st Battalion 181st Field Artillery. Finally, at his January 2007 videoconference hearing, the veteran indicated that he was receiving ongoing treatment for his right leg condition. He subsequently completed a release form giving VA permission to obtain these records. On remand, the AOJ should obtain any missing medical records. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the National Personnel Records Center (NPRC) or the service department to verify all periods of the veteran's service while in the Tennessee Army National Guard, to include verification of all dates of the veteran's ACDUTRA. Then, the veteran's complete medical records from all of his periods of ACDUTRA while in the Tennessee Army National Guard should be requested from NPRC and the Tennessee National Guard Joint Forces Headquarters. If records are unavailable, have the provider so indicate. 2. The AOJ should ask the veteran to identify all health care providers that have treated him for his face, eyes, left hand and his right leg disorders. The AOJ should attempt to obtain records from each health care provider he identifies that might have available records, in particular the health care providers for whom he signed a release for records in January 2007. If records are unavailable, have the provider so indicate. 3. Following completion of the above development, the AOJ should readjudicate the claims. If the benefits sought are not granted, a supplemental statement of the case should be issued to the veteran and his representative and an appropriate period of time for a response should be afforded. Thereafter, the case should be returned to the Board, if in order. The purposes of this remand are to comply with due process of law and to further develop the veteran's claim. No action by the veteran is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. The veteran and his representative have the right to submit additional evidence and argument on the matter 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). _________________________________________________ A. BRYANT 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).