Citation Nr: 1310255 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 07-04 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence has been received to reopen a final disallowed claim for service connection for a bilateral knee disorder, and if so whether service connection for a bilateral knee disorder is warranted. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1979 to October 1979, from November 1990 to June 1991, and from May 1996 to February 1997, including additional active and inactive duty for training in the U.S. Army Reserve. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2011, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. When this case was most recently before the Board in September 2011, it was remanded for additional evidentiary development; it has since been returned to the Board for further appellate action. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the September 2011 remand the Board directed the RO or AMC to request from the appropriate service agency a complete file of all service treatment records, including records of examination and medical care for the Veteran's active duty service from May 1996 to February 1997 and all Army Reserve service from May 1991 to September 2001, and to request Reserve medical treatment records from the U.S. Army Human Resources Command, ATTN: AHRC-CIS -P, 1 Reserve Way, St. Louis, MO 63132-5200. Following the September 2011 remand, the AMC sent emails to the Records Management Center (RMC), requesting service medical records (active duty and Reserves from May 1991 to September 2001). The AMC also sent a letter to the Veteran on September 2011 informing him of its actions. The claims file contains no relevant reply with regard to the email requests made to the RMC. (The AMC received an irrelevant email reply in September 2011, stating that an individual was no longer working in the requested department.) Subsequently, the Atlanta VA medical center submitted records from a medical facility in Athens, Georgia, showing outpatient treatment for the Veteran on April 5, 1993, and February 17, 1995, noting bilateral knee pain. Thereafter, the AMC sought records from the Defense Finance and Accounting Service (DFAS) to specifically include pay records for the Veteran on April 5, 1993, and February 17, 1995. The DFAS found no records for active, Reserves, or National Guard duty for those specific dates. The DFAS also submitted additional chronological statements of retirement points. Based on this finding, the AMC sought and obtained an independent medical opinion in January 2013 in regards to this claim; however, the Board finds that such an opinion is prematurely offered as there may exist pertinent, outstanding records. The Board notes that VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2) (2012). The development requested in the previous remand has not been completed. First, it does not appear that the RO or AMC requested Reserve medical treatment records from the U.S. Army Human Resources Command, ATTN: AHRC-CIS -P, 1 Reserve Way, St. Louis, MO 63132-5200. Second, the AMC never followed-up with its request for records from the RMC. Obtaining pay records from the DFAS does not equate to obtaining treatment records. Particularly in light of the aforementioned VAMC records in 1993 and 1995, showing bilateral knee pain, there has been insufficient efforts in obtaining the records that are relevant to the Veteran's claim. Of note, statute provides as follows: Whenever the Secretary attempts to obtain records from a Federal department or agency under this subsection or subsection (c), the efforts to obtain those records shall 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) (3) (West 2002). Here, VA has not fulfilled its duty to assist the Veteran in obtaining relevant records held by a Federal department or agency. The records sought have not been obtained, there are no negative replies associated with the claims file in regards to the RMC request, and there has been an insufficient effort and follow-up for the Board to determine that it is reasonably certain that such records do not exist or that further efforts to obtain the records would be futile. In this regard, it would be of great assistance to the Board if the Veteran himself attempted to obtain these record and provide them to the VA in order to expedite his appeal (or provide more information regarding when and where he received treatment for this problem). Hence, a remand is again necessary so that VA can meet its duty to assist the Veteran in obtaining relevant evidence. Accordingly, the case is REMANDED for the following action: 1. Request from the appropriate service agency a complete file of all service treatment records including records of examination and medical care for the Veteran's active duty service from May 1996 to February 1997 and all Army Reserve service from May 1991 to September 2001. Request Reserve medical treatment records from the U.S. Army Human Resources Command, ATTN: AHRC-CIS -P, 1 Reserve Way, St. Louis, MO 63132-5200. Associate any records received with the claims file. If these records are not all received, continue to make additional requests not only from the U.S. Army Human Resources Command Center but from any other depository of such records that may reasonably be in possession of his records. All requests must be documented and, if the requested records are not obtained, the RO or AMC must follow up on the requests. If the records are not obtained, then obtain a negative reply or replies and associate such replies with the claims file. 2. Then, after ensuring that the above development is completed, readjudicate the petition to reopen the final disallowed claim and, if reopened, a claim for service connection for a bilateral knee disorder. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and provide the Veteran and his representative the requisite time period to respond. Then, return the case to the Board for further appellate review, if otherwise in order. The Veteran 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. 2012). _________________________________________________ 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).