Citation Nr: 0710074 Decision Date: 04/06/07 Archive Date: 04/16/07 DOCKET NO. 03-01 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a right wrist disability, status post gunshot wound. 2. Entitlement to service connection for a chest disability, status post gunshot wound. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. S. Toth, Counsel INTRODUCTION The veteran served on active duty from December 1974 through December 1976. The matter comes before the Board of Veterans' Appeals (Board or BVA) from a February 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the benefits sought on appeal. The Board remanded the appeal in October 2004 for the RO to obtain the veteran's service personnel records, to include any line of duty determination. The RO partially developed the case in accordance with the Board's remand and then returned the case to the Board. In light of the additional development that is required, as will be explained below, 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 First, it is noted that the RO did not provide notice to the veteran pursuant to the Veterans Claims Assistance Act (VCAA) concerning the issue of whether the above claimed disabilities occurred in the line of duty or were the result of willful misconduct. In that regard, it is noted that upon receipt of an application for service connection, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. See 38 U.S.C. §§ 5102, 5103(a); 38 C.F.R. § 3.159(b). This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this particular case, the RO has not yet provided the veteran with notice pertaining to the initial issue of whether the injuries for which the veteran claimed service connection were incurred in the line of duty or whether they were the result of willful misconduct. This deficiency must be cured on remand. When this appeal was last before the Board in October 2004, the Board remanded the case for the RO to obtain copies of the veteran's service personnel records, to include any line of duty determination rendered. If the service personnel records did not contain information as to a line of duty determination, the RO was to request a copy of the report from the U.S. Army Enlisted Records and Evaluation Center at Fort Benjamin Harrison, Indiana. On remand, the RO associated with the claims folder a March 2002 response from the National Personnel Records Center (NPRC), which indicated that a Dec. 31, 1974, accidental shooting line of duty report was not a matter of record. The veteran's service personnel records were received from the NPRC in November 2004, but they did not contain a line of duty determination. The RO contacted the U.S. Army Human Resources Command in Alexandria, Virginia, in November 2004 in order to obtain the information requested by the Board remand. The response, however, indicated that the request should have been directed to the Commander at the Human Resources Command in St. Louis, MO. It does not appear, however, that the RO contacted this facility in an attempt to obtain the information requested by the Board. As a result, another remand is necessary in this case. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (held that, where remand orders of the Board or Court are not complied with, compliance with such instructions is required). It is additionally noted that the veteran's accredited representative has argued that VA should contact the Army Criminal Investigation Division as they may have a copy of the line of duty report, if existing. The RO should also contact this facility on remand in an effort to obtain the line of duty report, if existing. Finally, the Supplemental Statement of the Case (SSOC) that was issued by the RO in April 2006 was returned by the U.S. Postal Service as undeliverable. On remand, the RO should send the veteran a copy of the April 2006 SSOC at his current address, which is of record in the claims folder. Accordingly, the case is REMANDED for the following action: 1. The RO should issue a VCAA notice letter that informs the veteran of the information necessary to substantiate that the above claimed conditions were incurred in the line of duty and not as a result of willful misconduct, in accordance with 38 U.S.C.A. §§ 5102, 5103 (West 2002), 38 C.F.R. § 3.159 (2006), and any other applicable legal precedent. Specifically, the appellant and his representative should be informed of all information and evidence needed to substantiate and complete the claims, which information and evidence, if any, that he is to provide and which information and evidence, if any, VA will attempt to obtain. VA must also request that the claimant provide any evidence in his possession that pertains to the claims. 2. The RO should send a copy of the April 2006 SSOC to the veteran at his current address, which is of record in the claims folder. 3. The RO should also attempt to obtain a copy of any existing line of duty report by requesting the same from (a) the U.S. Army Human Resources Command in St. Louis, MO; (b) the U.S. Army Human Resources Command in Fort Benjamin Harrison, IN; and (c) the Army Criminal Investigation Unit. All responses must be associated with the claims folder. 4. The RO should then re-adjudicate the veteran's claim in light of the evidence added to the record since the last SSOC. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished another SSOC and be given the opportunity to respond thereto. 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). _________________________________________________ STEVEN L. KELLER 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).