Citation Nr: 1237211	
Decision Date: 10/26/12    Archive Date: 11/09/12

DOCKET NO.  07-00 374	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to a rating in excess of 20 percent for degenerative joint disease, left knee, with medial meniscus tear and suprapatellar joint effusion. 

2.  Entitlement to a rating in excess of 20 percent for degenerative joint disease, right knee, with medial meniscus tear and suprapatellar joint effusion.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Scott Walker, Counsel



INTRODUCTION

The Veteran served on active duty from September 1979 to May 1983. 

These matters come before the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. 

The Veteran testified before a Decision Review Officer (DRO) in May 2007.  A transcript of the 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 further action is required.


REMAND

In its November 2010 Remand, the Board, in pertinent part, directed the RO/AMC to obtain the Veteran's outpatient treatment records from the Orlando VA Medical Center (VAMC) since March 2007.  The AMC complied by obtaining records from the Orlando VAMC from March 2007 to February 2012.  Those records are associated with the claims file.  A supplemental statement of the case (SSOC) provided to the Veteran in March 2012 informed him of the same.  Shortly thereafter, in a statement received in April 2012, and referencing the March 2012 SSOC, the Veteran stated that he continued to receive treatment at the Orlando VAMC, that the records would document the severe nature of his bilateral knee disability, and that he wished for the RO/AMC to obtain those records.

The Board fully acknowledges that a complete set of record spanning nearly five years was associated with the claims file less than one month before the Veteran made his request for the AMC to obtain his records.  However, the fact remains that there is no way to determine whether records generated in that one month period would be relevant to the appeal.  Moreover, since filing that request, an additional six months worth of records are potentially available.  In short, there remains the possibility that VA treatment records, pertinent to the Veteran's claims, are outstanding.  

As such, VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c), (d) (2011).  Therefore, on remand all available VA treatment records shall be obtained from the Orlando VAMC dated March 1, 2012, to the present.  

Accordingly, the case is REMANDED for the following action:

1. The RO/AMC shall attempt to obtain and associate with the Veteran's claims folder all available VA medical records not already of record from the Orlando, Florida VAMC, from March 1, 2012, to the present.

If the records are not available, or if the search for the records yields a negative result, that fact should be clearly documented in the claims file, and the Veteran notified of the efforts made to obtain such records.  

2.  After completing the above action and any other development as may be indicated by any response received as a consequence of the action taken in the paragraph above, the claims should be readjudicated.  If either claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative.  After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review.

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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).



_________________________________________________
MICHAEL HERMAN
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) (2011).