Citation Nr: 1008509 Decision Date: 03/08/10 Archive Date: 03/17/10
DOCKET NO. 08-18 544 ) DATE ) )
On appeal from the Department of Veterans Affairs Regional Office in Oakland, California
THE ISSUES
1. Entitlement to service connection for scar, facial, right eye socket.
2. Entitlement to service connection for left lower leg, calf, nerve, and muscle.
REPRESENTATION
Appellant represented by: California Department of Veterans Affairs
ATTORNEY FOR THE BOARD
Timothy S. Hoseth, Associate Counsel
INTRODUCTION
The Veteran had periods of recognized Merchant Marine service from May 1943 to June 1945. The Veteran subsequently served on active duty from September 1950 to August 1952.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in November 2006, a statement of the case was issued in May 2008, and a substantive appeal was received in June 2008.
The Board notes that, following a September 2006 rating decision that denied service connection for disabilities involving the right eye socket and left lower leg, the Veteran submitted a written statement, received by VA in November2006, wherein he indicated that he was filing a clear and mistakable error (CUE) claim with respect to the September 2006 rating decision. The RO accepted the Veteran's statement as a request for reconsideration of the previous rating decision, as he specifically identified evidence that had not been considered. As such, the RO reconsidered the Veteran's claim and issued the August 2007 rating decision confirming its previous decision. The Veteran has not subsequently indicated that he wants to continue with a CUE claim with respect to the September 2006 rating decision. Instead, the Veteran appealed the August 2007 rating decision that is the basis of this appeal. As such, the Board finds the Veteran has not been prejudiced by the RO's reconsideration of his service connection claims and a CUE claim is not currently before the Board.
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 is seeking entitlement to service connection for facial scars around his right eye socket and a left lower leg/calf disability. Briefly, the Veteran contends that he was injured on October 17, 1944 when the life boat he was on fell approximately four stories.
Regrettably, the record as it stands is currently inadequate for the purpose of rendering a fully informed decision. Where the record before the Board is inadequate to render a fully informed decision, a remand to the AMC/RO is required in order to fulfill its statutory duty to assist the Veteran to develop the facts pertinent to the claim. Littke v. Derwinski, 1 Vet. App. 90, 92-93 (1990). The Board finds that additional development is necessary prior to final appellate review.
Central to this case is the question of the verification of the Veteran's dates of active service. The Veteran's DD Form 214 shows Merchant Marine service under the jurisdiction of the Coast Guard from May 21, 1943 to October 7, 1943; December 1, 1943 to May 26, 1944; and February 21, 1945 to June 21, 1945. However, the Veteran contends that he also had Merchant Marine service from July 27, 1944 to October 31, 1944. In support of this contention, the Veteran submitted a Vessel Service History (received by VA in August 2007) which documents that the Veteran was employed by the U.S. Army Transport Service from July 27, 1944 to October 31, 1944, and was aboard the vessel Yarmouth. Additionally, the Veteran submitted a War Department Civilian Marine Personnel Transportation Identification Card (received by VA in October 2007) which states that the card was issued by the Transportation Corps, U.S. Army. Given this evidence, the Board finds that the Veteran's dates of active service are not entirely clear from the record. It is imperative that the Board knows the Veteran's exact dates of all service. This information is required so that a factual determination can be made as to whether any of the Veteran's claimed disabilities were incurred in a period of service for which compensation is available. Thus, a remand for determining the Veteran's dates of active service is required.
Additionally, the Board finds that the record is unclear as to whether all the Veteran's service treatment records pertaining to his Merchant Marine service have been requested. In this regard, a document in the claims file states that the Veteran did not allege any treatment at PHS (Public Health Service), and no service medical records were available for his Merchant Marine service. However, the Board notes that the VA Adjudication Procedure Manual, M21- 1MR, Part III, Subpart iii, Chapter 2, Section F provides guidance on requesting Merchant Marine service records. In this regard, the Manual states that service treatment records for Merchant Marine service under the jurisdiction of the Army are located at the National Personnel Records Center (NPRC), Civilian Personnel Records. Since the Veteran's War Department Civilian Marine Personnel Transportation Identification Card, which contains his Z number, was issued by the Transportation Corps, U.S. Army, the Board believes that it is appropriate to request the Veteran's service treatment records for Merchant Marine service under the jurisdiction of the Army. See Subpart iii, Chapter 2, Section F.47.
Furthermore, the Veteran, as well as one of his fellow service members, contends that he was injured on October 17, 1944 while aboard the Yarmouth. Therefore, further efforts should be undertaken to ensure that any missing service treatment records have been requested and obtained. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c) (2009); see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992).
Finally, in light of the need to return the case for additional development, the Board believes it appropriate to provide the Veteran with another opportunity to authorize VA to obtain any pertinent private treatment records. In this regard, the Board notes that a VA treatment record, dated August 5, 2005, states that the Veteran was seen by a private practitioner, Dr. Noble. Thus, it appears that the Veteran received private medical treatment, but the associated treatment records are not in the claims file. Nevertheless, the Veteran is reminded that he has an obligation to cooperate fully with VA's efforts to obtain private medical records, including providing enough information to identify and locate the existing records. See 38 C.F.R. § 3.159. While VA has a duty to assist the Veteran in the development of his claim, the Veteran has a duty to cooperate with VA. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).
Accordingly, the case is REMANDED for the following action:
1. The AMC/RO should contact the Veteran and again request that he identify any relevant post-service private medical treatment (including the names, locations, and approximate dates). With any necessary authorization from the Veteran, the AMC/RO should take appropriate action to obtain and associate with the claims file any private medical records identified by the Veteran.
2.
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Citation Nr: 1008509 Decision Date: 03/08/10 Archive Date: 03/17/10
DOCKET NO. 08-18 544 ) DATE ) )
On appeal from the Department of Veterans Affairs Regional Office in Oakland, California
THE ISSUES
1. Entitlement to service connection for scar, facial, right eye socket.
2. Entitlement to service connection for left lower leg, calf, nerve, and muscle.
REPRESENTATION
Appellant represented by: California Department of Veterans Affairs
ATTORNEY FOR THE BOARD
Timothy S. Hoseth, Associate Counsel
INTRODUCTION
The Veteran had periods of recognized Merchant Marine service from May 1943 to June 1945. The Veteran subsequently served on active duty from September 1950 to August 1952.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in November 2006, a statement of the case was issued in May 2008, and a substantive appeal was received in June 2008.
The Board notes that, following a September 2006 rating decision that denied service connection for disabilities involving the right eye socket and left lower leg, the Veteran submitted a written statement, received by VA in November2006, wherein he indicated that he was filing a clear and mistakable error (CUE) claim with respect to the September 2006 rating decision. The RO accepted the Veteran's statement as a request for reconsideration of the previous rating decision, as he specifically identified evidence that had not been considered. As such, the RO reconsidered the Veteran's claim and issued the August 2007 rating decision confirming its previous decision. The Veteran has not subsequently indicated that he wants to continue with a CUE claim with respect to the September 2006 rating decision. Instead, the Veteran appealed the August 2007 rating decision that is the basis of this appeal. As such, the Board finds the Veteran has not been prejudiced by the RO's reconsideration of his service connection claims and a CUE claim is not currently before the Board.
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 is seeking entitlement to service connection for facial scars around his right eye socket and a left lower leg/calf disability. Briefly, the Veteran contends that he was injured on October 17, 1944 when the life boat he was on fell approximately four stories.
Regrettably, the record as it stands is currently inadequate for the purpose of rendering a fully informed decision. Where the record before the Board is inadequate to render a fully informed decision, a remand to the AMC/RO is required in order to fulfill its statutory duty to assist the Veteran to develop the facts pertinent to the claim. Littke v. Derwinski, 1 Vet. App. 90, 92-93 (1990). The Board finds that additional development is necessary prior to final appellate review.
Central to this case is the question of the verification of the Veteran's dates of active service. The Veteran's DD Form 214 shows Merchant Marine service under the jurisdiction of the Coast Guard from May 21, 1943 to October 7, 1943; December 1, 1943 to May 26, 1944; and February 21, 1945 to June 21, 1945. However, the Veteran contends that he also had Merchant Marine service from July 27, 1944 to October 31, 1944. In support of this contention, the Veteran submitted a Vessel Service History (received by VA in August 2007) which documents that the Veteran was employed by the U.S. Army Transport Service from July 27, 1944 to October 31, 1944, and was aboard the vessel Yarmouth. Additionally, the Veteran submitted a War Department Civilian Marine Personnel Transportation Identification Card (received by VA in October 2007) which states that the card was issued by the Transportation Corps, U.S. Army. Given this evidence, the Board finds that the Veteran's dates of active service are not entirely clear from the record. It is imperative that the Board knows the Veteran's exact dates of all service. This information is required so that a factual determination can be made as to whether any of the Veteran's claimed disabilities were incurred in a period of service for which compensation is available. Thus, a remand for determining the Veteran's dates of active service is required.
Additionally, the Board finds that the record is unclear as to whether all the Veteran's service treatment records pertaining to his Merchant Marine service have been requested. In this regard, a document in the claims file states that the Veteran did not allege any treatment at PHS (Public Health Service), and no service medical records were available for his Merchant Marine service. However, the Board notes that the VA Adjudication Procedure Manual, M21- 1MR, Part III, Subpart iii, Chapter 2, Section F provides guidance on requesting Merchant Marine service records. In this regard, the Manual states that service treatment records for Merchant Marine service under the jurisdiction of the Army are located at the National Personnel Records Center (NPRC), Civilian Personnel Records. Since the Veteran's War Department Civilian Marine Personnel Transportation Identification Card, which contains his Z number, was issued by the Transportation Corps, U.S. Army, the Board believes that it is appropriate to request the Veteran's service treatment records for Merchant Marine service under the jurisdiction of the Army. See Subpart iii, Chapter 2, Section F.47.
Furthermore, the Veteran, as well as one of his fellow service members, contends that he was injured on October 17, 1944 while aboard the Yarmouth. Therefore, further efforts should be undertaken to ensure that any missing service treatment records have been requested and obtained. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c) (2009); see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992).
Finally, in light of the need to return the case for additional development, the Board believes it appropriate to provide the Veteran with another opportunity to authorize VA to obtain any pertinent private treatment records. In this regard, the Board notes that a VA treatment record, dated August 5, 2005, states that the Veteran was seen by a private practitioner, Dr. Noble. Thus, it appears that the Veteran received private medical treatment, but the associated treatment records are not in the claims file. Nevertheless, the Veteran is reminded that he has an obligation to cooperate fully with VA's efforts to obtain private medical records, including providing enough information to identify and locate the existing records. See 38 C.F.R. § 3.159. While VA has a duty to assist the Veteran in the development of his claim, the Veteran has a duty to cooperate with VA. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).
Accordingly, the case is REMANDED for the following action:
1. The AMC/RO should contact the Veteran and again request that he identify any relevant post-service private medical treatment (including the names, locations, and approximate dates). With any necessary authorization from the Veteran, the AMC/RO should take appropriate action to obtain and associate with the claims file any private medical records identified by the Veteran.
2. The AMC/RO should take appropriate action to verify all of the Veteran's dates of active military service, including Merchant Marine service under the jurisdiction of the Army. The Veteran's Z number, as documented on his War Department Civilian Marine Personnel Transportation Identification Card, should be supplied when requesting his dates of Merchant Marine service under the jurisdiction of the Army. The Board is particularly interested in determining whether the Veteran had active military service during the period from July 27, 1944 to October 31, 1944.
3. The AMC/RO should take appropriate action to obtain all of the Veteran's service treatment records that are not currently incorporated into the claims file. The Board is particularly interested in service treatment records for Merchant Marine service under the jurisdiction of the Army. The Veteran's Z number, as documented on his War Department Civilian Marine Personnel Transportation Identification Card, should be supplied when requesting his Merchant Marine service records. If additional records are not available, or the search for any such records otherwise yields negative results, that fact should be clearly documented in the claims file.
4. After completion of the above and any further development deemed necessary by the AMC/RO, the issues on appeal should be readjudicated. If the benefits sought are not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review.
The appellant has the right to submit additional evidence and argument on the 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. 2009).
_________________________________________________ A.J. TURNIPSEED 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) (2009).