Citation Nr: 0424696 Decision Date: 09/08/04 Archive Date: 09/16/04 DOCKET NO. 03-37 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a total left knee replacement. REPRESENTATION Appellant represented by: The American Legion INTRODUCTION The veteran had active service from January 1955 to January 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. A video-conference hearing was scheduled for April 2004, but the veteran did not appear and did not request that it be rescheduled. Therefore, his hearing request is deemed to have been withdrawn. This appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will contact you if further action is required on your part. REMAND The veteran seeks service connection for a total left knee replacement which he contends was caused by injuries he incurred during active duty service. He recounts that he was treated on three occasions in service for knee pains and swelling. The RO has been unable to obtain the veteran's service medical records. In January 2002, the RO received notice from the National Personnel Records Center (NPRC) that the veteran's service records were "fire related." In June 2002, the RO notified the veteran of the missing records and requested that he complete and return NA Form 13075 (Questionnaire About Military Service). At the time of the RO's rating decision less than two months later, the RO indicated that the veteran failed to return NA Form 13075 and denied the claim for service connection for a total left knee replacement. In September 2002, the veteran filed a notice of disagreement (NOD) regarding the August 2002 rating decision, reiterating that he had "injured his knee while jumping from a C-119." The RO again sent the veteran a letter in December 2002 requesting the completion of NA Form 13075. The Statement of the Case (SOC), issued by the RO nine months later in September 2003, indicates that the RO requested that the veteran complete and return NA Form 13075, but that "no reply to this request for evidence has been received." Significantly, however, to the extent that the RO is indicating that the veteran did not complete and return the form, the evidence in the claims file does not support this statement. The Board notes that VA received NA Form 13075 from the veteran on January 10, 2003, and a subsequent Request for Information (VA Form 21-3101) was issued by the RO to the National Personnel Records Center (NPRC) on February 24, 2003. As of this time, it is clear that the RO has not exhausted all alternative measures to retrieve the veteran's service medical records. The claims file does not contain a response from the NPRC regarding the Request for Information submitted in February 2003, nor does it reflect any additional attempts made by the RO to collect these records. In a disability compensation claim, VA is required to obtain the veteran's service medical records or other relevant service records held or maintained by a government entity. 38 U.S.C.A. § 5103A(c) (West 2002). When VA attempts to obtain records from a federal department or agency, the efforts to obtain those records must continue until the records are obtained, unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. 38 U.S.C.A. § 5103A(b)(3). Therefore, a remand is required so that the RO may comply with the duty to assist and properly document its actions in the claims folder. Accordingly, the case is REMANDED for the following action: 1. The RO should follow-up on the NA Forms 13042 (Request for Information Needed to Locate Medical Records) and 13075 (Questionnaire About Military Service). Efforts to obtain these records must continue until the records are obtained, unless it is reasonably certain that such records do not exist or that further efforts to obtain these records would be futile. 2. The RO should obtain copies of all of the veteran's private medical records from Dr. Paul Stanton, Desert Valley Medical Group; Dr. Peter Macs and Dr. Charles Russell, The Orthopaedic Medical Clinic; as well as copies of the veteran's hospital records regarding his total left knee replacement surgery, particularly the veteran's statement of medical history prior to surgery. If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ H. N. SCHWARTZ 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).