Citation Nr: 0811048	
Decision Date: 04/03/08    Archive Date: 04/14/08

DOCKET NO.  07-16 969	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio


THE ISSUES

1.  Entitlement to service connection for residuals of a 
right knee injury, to include arthritis.

2.  Entitlement to service connection for residuals of a left 
knee injury, to include arthritis.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

K. R. Fletcher, Counsel


INTRODUCTION

The appellant is a veteran who served on active duty from 
March 1981 to March 1984.  These matters are before the Board 
of Veterans' Appeals (Board) on appeal from a February 2007 
rating decision by the Cleveland, Ohio Department of Veterans 
Affairs (VA) Regional Office (RO).  In December 2007, a 
Travel Board hearing low back before the undersigned; a 
transcript of this hearing is of record.

The appeal is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.  VA will notify the 
appellant if any action on his part is required.


REMAND

The veteran contends that he has arthritis of his knees due 
to an injury sustained during his military service.  
Specifically, he maintains that he was hit by a taxi on some 
military base in Germany other than Wiesbaden as he was 
heading to a Christmas party.  He states that this was either 
in December 1982 or December 1983.  The veteran states that 
he was hospitalized for several days; thereafter, he returned 
to Wiesbaden where he was seen at sick call and then placed 
on a light duty profile.  The Board notes that the veteran's 
complete service medical records (SMRs) are unavailable for 
review.  The only records that are available are records from 
Wiesbaden dated in November 1983, which are silent for 
complaints or findings of a knee disability or injury.  VA 
has a heightened duty to assist the veteran in developing his 
claim since the SMRs in this case are not available.  See 
O'Hare v. Derwinski, 1 Vet. App. 365 (1991).

The Board notes that there are no service personnel records 
in the claims file, and it does not appear that a request was 
ever made to obtain such records.  If the records exist, they 
would likely include pertinent, perhaps critical, evidence in 
the matters at hand, to include physical profile records and 
accident reports.

Finally, on March 3, 2006, the Court issued a decision in the 
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006), which held that the VCAA notice requirements 
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to 
all five elements of a service connection claim, including 
the degree of disability and the effective date of an award.  
In the present appeal, the veteran was not provided with 
notice of the type of evidence necessary to establish the 
degree of disability or an effective date for any award of 
compensation.  The RO will have the opportunity to cure these 
notice deficiencies on remand.

Accordingly, the case is REMANDED for the following action:

1.  With respect to the issues of 
entitlement to service connection for 
residuals of a right knee injury and a 
left knee injury, to include arthritis, 
the RO should provide the veteran notice 
regarding the rating of disability and 
effective dates of awards in accordance 
with Dingess/Hartman v. Nicholson, 19 Vet. 
App. 473 (2006).

2.  The RO should secure and associate 
with the record the veteran's complete 
service personnel file.  If such records 
are unavailable because they have been 
irretrievably lost or destroyed, it should 
be so certified for the record.

3.  Then, the RO should undertake any 
other indicated development (to include 
obtaining an etiology opinion for 
arthritis of the right and left knees if 
suggested necessary by any additional 
medical evidence received).

4.  The, the RO should readjudicate the 
issues on appeal.  If the benefits sought 
on appeal remain denied, the veteran and 
his representative should be furnished an 
appropriate supplemental statement of the 
case and provided an appropriate 
opportunity to respond.

The appellant has the right to submit additional evidence and 
argument on the matters that the Board has remanded.  See 
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 for additional 
development or other appropriate action must be handled in an 
expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 
Supp. 2007).



_________________________________________________
George R. Senyk
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) (2007).