Citation Nr: 0813809 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 99-17 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Dennis L. Peterson, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The veteran served on active duty from June 20, 1972, to October 20, 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in July 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. This case was previously before the Board when, by a decision dated September 1, 2005, the Board denied entitlement to service connection for a left knee disability. The veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2007 Order, the Court of Appeals for Veterans Claims vacated the Board's September 2005 decision in this matter. The below action is directed in view of the Court's Order. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In a July 2007 Order, the Court of Appeals for Veterans Claims (Court) found that VA had not fulfilled its duty to assist the veteran insofar as sufficient efforts had not been made to obtain records of VA treatment of the veteran at the VA Medical Center in Milwaukee, Wisconsin, during the 1972 to 1973 time frame. The veteran discussed this treatment at his RO hearing in July 1999. In its July 2007 Order, the Court noted that VA memoranda and other documentation, including an April 2001 deferred rating decision, indicated that a thorough search for these records may not have been made. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, and the Court's July 2007 Order, further attempts to obtain these identified records of VA treatment would be helpful in adjudication of the veteran's claim. See 38 U.S.C.A. § 5103A(b-c) (West 2002); 38 C.F.R. § 3.159(b-c) (2007). Additionally, in its July 2007 Order the Court suggested that a new VA examination and opinion may be warranted in adjudication of the veteran's claim if records sought from the Milwaukee, Wisconsin, VAMC, are received. If the records of VA treatment from the 1972 to 1973 time frame are received, and contain evidence as to the nature and etiology of veteran's left knee disability shortly after service, a new VA examination should be scheduled. See 38 U.S.C.A. § 5103A(d). Accordingly, the case is REMANDED for the following action: 1. Contact all appropriate VA records depositories necessary to conduct a thorough search for records of treatment or physical therapy at the VAMC in Milwaukee, Wisconsin, during the 1972 to 1973 time frame. (See RO July 1999 RO hearing transcript at p. 2). Records of a Federal department or agency must be sought until it is reasonably certain that such records do not exist or that further efforts to obtain these records would be futile. In this context, VA must either provide the identified records, or it must provide for the record a statement indicating why it is reasonably certain that such records do not exist or that further efforts to obtain these records would be futile. 38 U.S.C.A. § 5103A(b)(3). 2. If records of treatment or physical therapy pertaining to the veteran's left knee at the Milwaukee VAMC during the 1972 to 1973 time frame are obtained, the RO should schedule the veteran for a new VA examination for the purpose of determining whether it is at least as likely as not that any left knee disorder originated or was aggravated during the veteran's military service. 3. Readjudicate the issue on appeal. If the benefit sought remains denied, the veteran and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if otherwise in order. No action is required of the veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The appellant has the right to submit additional evidence and argument on the matter 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ U. R. POWELL 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).