Citation Nr: 0402030	
Decision Date: 01/21/04    Archive Date: 01/28/04

DOCKET NO.  00-01 304	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for the residuals of a low 
back injury.

WITNESSES AT HEARING ON APPEAL

Appellant and Spouse


ATTORNEY FOR THE BOARD

M. Hannan, Counsel


INTRODUCTION

The appellant served on active duty in the Marine Corps from 
December 1951 to December 1953.  This case comes before the 
Board of Veterans' Appeals (the Board) on appeal from a 
November 1997 rating decision issued by the Department of 
Veterans Affairs (VA) Regional Office (RO) in San Juan, the 
Commonwealth of Puerto Rico.

In May 1997, the appellant designated the American Legion to 
be his representative.  During his March 1998 hearing at the 
RO, the appellant effectively revoked that appointment.  A 
May 2003 written statement from the American Legion confirms 
the revocation.  The appellant has not appointed any other 
representative and he is currently representing himself.


REMAND

A determination has been made that additional development is 
necessary in the current appeal.  Accordingly, further 
appellate consideration will be deferred and this case is 
REMANDED to the RO for action as described below.

The appellant contends that he suffered an injury to his back 
during an exercise in September 1952 at Vieques Island in 
Puerto Rico.  He states that he sought treatment for back 
pain in service while he was hospitalized.  Review of the 
service medical records reveals that he was hospitalized at 
the Naval Hospital at Camp Lejeune from May 28, 1952 to June 
10, 1952, and from May 8, 1953 to May 15, 1953.  The 
associated hospital records have not been included with the 
claims file.

The appellant has also contended that his service personnel 
records prove his allegations concerning various sequences of 
events.  However, the only service personnel records now 
included in the claims file are copies of documents submitted 
by the appellant.  The RO should obtain the appellant's 
complete service personnel record.

The evidence of record includes letters written by a private 
physician who treated the appellant from 1967 to 1990 for 
various complaints, including back pain.  It does not appear 
that the RO attempted to obtain records from this doctor.

While this appeal was pending, legislation was passed that 
enhances VA's duties to notify a claimant regarding the 
evidence needed to substantiate a claim and to assist a 
claimant in the development of a claim.  See Veterans Claims 
Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
and 3.326(a) (2003).  While the appellant was furnished with 
a copy of a pertinent VA regulation implementing the VCAA in 
the Supplemental Statement of the Case issued in October 
2002, the United States Court of Appeals for Veterans Claims 
(Court) has issued a decision holding that both the statute, 
38 U.S.C.A. § 5103(a), and the regulation, 38 C.F.R. § 3.159, 
clearly require the Secretary to notify a claimant which 
evidence, if any, will be obtained by the claimant and which 
evidence, if any, will be retrieved by the Secretary.  
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The record 
does not clearly show that the appellant has been notified of 
what evidence was needed from him and what evidence VA would 
obtain.  The Board no longer has authority to attempt to cure 
VCAA deficiencies.  See Disabled American Veterans v. 
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 
2003).  Accordingly, a remand in necessary to ensure 
compliance with the provisions of the VCAA, VA implementing 
regulations, and the Court's decision in Quartuccio.

In an effort to assist the RO, the Board has reviewed the 
claims file and identified certain assistance that must be 
rendered to comply with the VCAA.  However, it is the RO's 
responsibility to ensure that all appropriate development is 
undertaken in this case.

Finally, in a decision promulgated on September 22, 2003, 
Paralyzed Veterans of America v. Secretary of Veterans 
Affairs, No. 02-7007, -7008, -7009, -7010 (Fed. Cir. Sept. 
22, 2003), the United States Court of Appeals for the Federal 
Circuit invalidated the 30-day response period contained in 
38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§ 
5103(b)(1).  The Court made a conclusion similar to the one 
reached in Disabled Am. Veterans v. Secretary of Veterans 
Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a 
related Board regulation, 38 C.F.R. § 19.9).  The Court found 
that the 30-day period provided in § 3.159(b)(1) to respond 
to a VCCA duty to notify is misleading and detrimental to 
claimants whose claims are prematurely denied short of the 
statutory one-year period provided for response.  Therefore, 
since this case is being remanded for additional development 
or to cure a procedural defect, the RO must take this 
opportunity to inform the appellant that a full year is 
allowed to respond to a VCAA notice.

In light of the foregoing, this case is REMANDED for the 
following development: 

1.  The RO must review the claims file and 
ensure that all VCAA notice obligations 
have been satisfied in accordance with the 
decision in Paralyzed Veterans of America 
v. Secretary of Veterans Affairs, as well 
as 38 U.S.C.A. §§ 5102, 5103, and 5103A 
(West 2002), and any other applicable 
legal precedent.  In particular, the RO 
must notify the appellant of the 
information and evidence needed to 
substantiate his claim and of what part of 
such evidence the Secretary will attempt 
to obtain on his behalf.  See Quartuccio 
v. Principi, 16 Vet. App. 183 (2002).  See 
also Charles v. Principi, 16 Vet. App. 370 
(2002).

2.  The RO should contact all appropriate 
sources to obtain the appellant's missing 
Marine Corps service medical records, 
namely the records from the U.S. Naval 
Hospital at Camp Lejeune for inpatient 
treatment rendered from May 28, 1952 to 
June 10, 1952, and from May 5, 1953 to 
May 15, 1953.  These records should be 
associated with the claims file.  To the 
extent that there is an attempt to obtain 
records that is unsuccessful, the claims 
file should contain documentation of the 
attempts made.

3.  The RO should contact all appropriate 
sources to obtain a legible copy of the 
appellant's Marine Corps service 
personnel records, which should be 
associated with the claims file.  To the 
extent that there is an attempt to obtain 
records that is unsuccessful, the claims 
file should contain documentation of the 
attempts made.

4.  The RO should, with the appellant's 
assistance as needed, ascertain whether 
there are any pertinent medical treatment 
records dated since 1954 that are not on 
file.  If so, an attempt to obtain the 
records should be undertaken.  In 
particular, the RO should attempt to 
obtain records from Dr. Jose Ramon Medina 
who treated the appellant from 1967 to 
1990.  To the extent that there is an 
attempt to obtain records that is 
unsuccessful, the claims file should 
contain documentation of the attempts 
made.

5.  After the above development is 
completed, and whether or not records are 
received which are pertinent, the RO 
should arrange to have the appellant's 
claims file reviewed by an orthopedic 
surgeon or neurologist or other 
appropriate practitioner.  The reviewer 
is requested to review the pertinent 
medical records, and provide a written 
opinion as to the presence, etiology and 
onset of any low back pathology.  
Specifically, the reviewer is requested 
to provide an opinion as to whether it is 
it is more likely than not (i.e., 
probability greater than 50 percent), at 
least as likely as not (i.e., probability 
of 50 percent), or less likely than not 
(i.e., probability less than 50 percent) 
that any documented lumbar spine 
pathology is related to the appellant's 
service.  The basis of the opinion should 
be included in the document containing 
the opinion.

6.  Thereafter, the RO should 
readjudicate the appellant's service 
connection claim, with consideration of 
the evidence received by the Board.  If 
the benefits sought on appeal remain 
denied, the appellant and the appellant's 
representative, if any, should be 
provided a Supplemental Statement of the 
Case (SSOC).  An appropriate period of 
time should be allowed for response.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded to 
the regional office.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).

Thereafter, the case should be returned to the Board, if in 
order.  The Board intimates no opinion as to the ultimate 
outcome of this case.  The appellant need take no action 
unless otherwise notified.

This claim must be afforded expeditious treatment by the RO.  
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 The Veterans' Benefits Improvements Act of 1994, 
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory 
Notes).  In addition, VBA's Adjudication Procedure Manual, 
M21-1, Part IV, directs the ROs to provide expeditious 
handling of all cases that have been remanded by the Board 
and the Court.  See M21-1, Part IV, paras. 8.43 and 38.02.



		
	MARY GALLAGHER
	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) (2003).



{'dataset': 'bva_opinions'}