Citation Nr: 1316653	
Decision Date: 05/21/13    Archive Date: 05/29/13

DOCKET NO.  09-46 614	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left knee disability.


REPRESENTATION

Veteran represented by:	Lauren Murphy, Agent


WITNESSES AT HEARING ON APPEAL

Veteran and his goddaughter


ATTORNEY FOR THE BOARD

A. Zenzano, Associate Counsel
 
INTRODUCTION

The Veteran served on active duty from January 1951 to January 1952.

This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system.  

The issue of whether the RO's April 1952 rating decision contained clear and unmistakable error has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  See Statement from Accredited Representative, dated October 2012.  Therefore, the Board does not have jurisdiction over the matter, and it is referred to the AOJ for appropriate action.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

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

While the Board sincerely regrets the delay, additional development is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 

During his hearing with the Board, the Veteran testified that he had received treatment from a California VA sometime in the mid-1950s.  See page 11 of the hearing transcript.  Efforts to obtain such treatment records should be made.  

The Veteran reported that he underwent left knee surgery at the Livermore VA medical facility in February 1976.  See Board Hearing Transcript at 10-11.  He has also previously asserted undergoing left knee surgery in February 1976 at the Walnut Creek VA medical facility.  See VA Form 21-2545, dated October 1992.  Treatment records from either facility are not of record; and, while the RO has endeavored to obtain previously identified VA treatment records, a request for records from these facilities has not been made.

The Board emphasizes that 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).  Accordingly, on remand, the RO should request the above described records, with any additional assistance from the Veteran required.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Obtain any outstanding, pertinent VA records of evaluation and/or treatment of the Veteran since his discharge from service; specifically, records from a California VA dated in the mid-1950s, and records detailing a February 1976 left knee surgery at either the Livermore or Walnut Creek VA medical facility.  Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities.  All records and/or responses received should be associated with the claims file.

2.  After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the matter on appeal in light of all pertinent evidence (to include all that added to the record since the RO's last adjudication) and legal authority.

3.  If the benefit sought on appeal remains denied, furnish to the Veteran and his agent an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

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. 2012).



_________________________________________________
MARJORIE A. AUER
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).