Citation Nr: 0811180 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-31 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating higher than 20 percent for a left knee disability, status post left leg tibia fracture. 2. Entitlement to an initial compensable rating for a left knee scar. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Paul S. Rubin, Associate Counsel INTRODUCTION The veteran had active military service from June 1984 to April 1987, from February 2003 to January 2004, and from July 2005 to September 2006. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In a recent August 2007 rating decision, the RO revised its earlier November 2004 rating decision concerning the claims at issue on the basis that the evidence established "clear and unmistakable error" (CUE) as to the effective dates assigned for the respective disability ratings. See 38 C.F.R. § 3.105(a). The finding of CUE in the earlier decision was based on the fact that the veteran was recalled to active duty service in Iraq from July 21, 2005 to September 25, 2006, and thus was no longer entitled to VA disability benefits during that period of time for his service-connected left knee orthopedic and scar disabilities. In his September 2005 substantive appeal (VA Form 9), the veteran requested a Travel Board hearing, but he cancelled that request in a personal statement dated in February 2006. See 38 C.F.R. § 20.704(e) (2007). Regrettably, though, since the claims must be further developed before deciding the appeal, the Board is remanding the case to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Further development is required before determining whether a higher initial rating is warranted for the claims at issue. First, the recent August 2007 rating decision lists several documents which are missing from the claims file. Specifically, a September 2006 Statement in Support of Claim (VA From 21-4138), an October 2006 Veterans Claims Assistance Act (VCAA) letter, the report of an October 2006 VA contract examination, and treatment records from the VA Medical Center (VAMC) in Decatur, Georgia dated from October 2006 to August 2007 are all currently not present in the claims file. A remand to the RO (via the AMC)) is required to include these documents and records with the claims file. The AMC should also ensure that the October 2006 VCAA letter complies with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Concerning this, this letter should specifically advise him concerning the elements of a disability rating and an effective date. If it does not, a compliant letter should be sent to the veteran. Second, if the veteran has received additional relevant VA treatment for his left knee orthopedic and scars disorders since August 2007, these records should be obtained as well. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Third, as alluded to above, the veteran was recalled to active duty to serve in Iraq from July 21, 2005 to September 25, 2006. However, there is no indication the RO attempted to obtain service medical records (SMRs) from this period of service, which may be relevant to the claims at issue. VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) (West 2002). Specifically, VA is required to obtain the veteran's SMRs or other relevant service records held or maintained by a government entity. 38 U.S.C.A. § 5103A(c). 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); 38 C.F.R. § 3.159(c)(2), (c)(3) (2007). The standard for the VA is very high. On remand, it is essential for the RO to make every effort to obtain whatever SMRs may exist dated from July 21, 2005 to September 25, 2006 at the National Personnel Records Center (NPRC) or at other locations. In addition, any records that the veteran can submit by himself will greatly reduce the time it will take to fully adjudicate his claims. If no records are available, a negative reply to that effect is required. Accordingly, this case is REMANDED for the following development and consideration: 1. Obtain the following documents and records which are listed in August 2007 rating decision, but are presently missing from the claims file: a September 2006 Statement in Support of Claim (VA From 21-4138), an October 2006 Veterans Claims Assistance Act (VCAA) letter, the report of an October 2006 VA contract examination, and treatment records from the VA Medical Center (VAMC) in Decatur, Georgia dated from October 2006 to August 2007. If the October 2006 VCAA letter does not comply with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), in terms of advising the veteran about the elements of a disability rating and an effective date, then send a compliant letter to the veteran. 2. Obtain the records of any medical treatment for the veteran's left knee orthopedic and scar disorders from the VAMC in Decatur, Georgia from October 2006 to the present. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 3. Contact the NPRC or any other appropriate locations and attempt to secure the veteran's SMRs for his period of service from July 21, 2005 to September 25, 2006. If such records do not exist, or further attempts to secure them would be futile, a response to that effect is required and must be associated with the claims file. The veteran is asked to assist, if possible, in obtaining these records by providing any additional, relevant SMRs he may possess. 4. Then readjudicate the veteran's claims in light of any additional evidence received. If the claims are not granted to his satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The veteran has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2007). _________________________________________________ KEITH W. ALLEN 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).