Citation Nr: 1301124 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 09-01 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active military service from February 1989 to March 1993, and from June 2004 to October 2005, with additional service in the Army Reserves. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2006 rating decision. In October 2012, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. 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 Additional development is needed prior to the disposition of the Veteran's claim. VA has a duty to assist claimants in the development of facts pertinent to claims and VA must accomplish additional development of the evidence if the record before it is inadequate. 38 U.S.C.A. § 5103A (West 2002). The Board regrets the additional delay that will result from this remand. Nevertheless, the Board is constrained by the fact that proper adjudication of the claim requires additional development. In October 2012, the Veteran testified that she had service in the Army Reserves from 1993 to 2004 and participated in her last drill in 2008. She also testified that she re-injured one of her knees during service in a Reserve Officers' Training Corps (ROTC) program sometime between 2000 and 2002. A review of the record shows that the Veteran's service treatment records (STRs) from her first and second period of active service have been obtained. However, the Veteran's Army Reserves records are not associated with the claims folder and may be relevant to the application to reopen the claim of service connection for a bilateral knee disability. See 38 C.F.R. § 3.307, 3.309(a). In addition, the Veteran testified that she received treatment of her bilateral knee disability at a VA Medical Center in Nevada. However, a review of the record shows that these records have not been associated with the physical claims file or the virtual claims file. In addition, the most recent VA treatment records associated with the physical claims file are dated in September 2008. In this regard, it would be of great assistance to the Board if, when the Veteran receives treatment, she obtains these records herself and submits them to the VA to avoid delay in the full adjudication of her case. The Veteran has also indicated private treatment of her bilateral knee disability at the Jewish Hospital Medical Center East in Louisville, Kentucky. Accordingly, the Veteran's VA and private treatment records should be requested and obtained. In this regard, as noted above, there may be some confusion in light of the Veteran's name changes. Accordingly, the case is REMANDED for the following actions: 1. Contact the United States Army Personnel Center, or any other appropriate service department office, and obtain service personnel records, including the Veteran's NGB Form 22 and any DD Forms 214 that have not already been obtained and associated with the claims file, and complete service treatment records that document the specific dates of the Veteran's active duty, and active and inactive duty training for all periods of service and associate them with the claims file. When requesting these records, the RO should take note that the Veteran had active service under two different names and that a total of five names for the Veteran are of record. A request for records should be made under all five of the Veteran's names. A formal determination, pursuant to 38 C.F.R. § 3.159(c)(2), must be entered if it is determined that the above records or information do not exist or that efforts to obtain them would be futile. In the event that it is determined that the records are unavailable, provide the Veteran with appropriate notice under 38 C.F.R. § 3.159(c), and give her an opportunity to respond. 2. Obtain VA treatment records from the Nevada VA facilities, including all VA treatment records dated since September 2008, and associate them with the physical OR virtual claims file for review. 3. After obtaining the necessary authorization, obtain the Veteran's private treatment records from the Jewish Hospital Medical Center East in Louisville, Kentucky and any additional private treatment records identified by the Veteran. All attempts to secure the records must be documented in the claims folder. 4. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran and her representative a supplemental statement of the case and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action. 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). _________________________________________________ JOHN J. CROWLEY 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) (2012).