Citation Nr: 0812985 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 04-29 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for residuals of a left knee injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Associate Counsel INTRODUCTION The veteran served on active duty from October 1966 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) from a December 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for residuals of a left knee injury. The veteran testified before the Board in September 2006. In a January 2007 decision, the Board denied the veteran's claim for service connection for residuals of a left knee injury. The veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand, a December 2007 decision of the Court remanded the claim for readjudication in accordance with the Joint Motion. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the appellant if further action is required. REMAND Additional development is needed prior to further disposition of the claim. It appears additional service personnel records are outstanding. At a September 2006 video conference hearing before the Board, the veteran testified that he injured his left knee during service and was treated by a corpsman for the injury. He reported that he used crutches for approximately one month after the injury. He asserted that while he was still using crutches, he was ordered to perform a physical training test that he did not report to because he did not think it was a serious request. He stated that as a result, he was punished by being restricted to barracks for 30 days. The service personnel records currently existing in the claims file show that the veteran had a notation of unauthorized absence in March 1969. However, it does not appear that the associated records of any non-judicial punishment of restriction to barracks have yet been requested to corroborate the veteran's reported injury during service. Relevant records from a Federal department or agency should be obtained, if available. See 38 C.F.R. § 3.159(c)(2) (2007). While VA did obtain the portions of the veteran's service personnel records that would verify combat participation in connection with a claim of service connection for PTSD, the associated records of any non-judicial punishment of restriction to barracks have not yet been requested. Because information sufficient to allow for a search of these records is available, and these records may be useful in deciding the veteran's claim, an attempt to obtain them should be made. 38 C.F.R. § 3.159(c)(2) (2007); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Request that the National Personnel Records Center (NPRC) furnish all available service personnel records, to include any records of non-judicial punishment involving restriction to barracks and any other type of non- judicial punishment, for the veteran's service in the United States Marine Corps from the period of October 1966 to March 1970. If any of the records are shown to be at another storage facility, a request should be made to the appropriate storage facility. All efforts to obtain medical records should be fully documented, and the facilities must provide a negative response if records are not available. 2. Schedule the veteran for a VA examination of the claimed left knee disorder. The claims file must be made available to the examiner and the examiner should indicate in his/her report whether or not the claims file was reviewed. Any indicated tests, including X-rays if indicated, should be accomplished. A rationale for any opinion expressed should be provided. (A) The examiner should opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current left knee disorder is related to service to include any in-service injury. (B) The examiner should opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that any left knee disorder was first manifest during active service or within the initial post-service year of service. 3. Then, after ensuring any other necessary development has been completed, readjudicate the veteran's claim for service connection for residuals of a left knee injury. If action remains adverse to the veteran, provide the veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2007) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant has the right to submit additional evidence and argument on the matter the Board is remanding. 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. 2007). _________________________________________________ C. TRUEBA 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) (2007).