Citation Nr: 1320430	
Decision Date: 06/25/13    Archive Date: 07/05/13

DOCKET NO.  08-34 399	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for osteoarthritis of the left knee.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

L. Edwards, Associate Counsel


INTRODUCTION

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 Veteran had active service from July 1956 to July 1960.  This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Veteran requested a hearing before the Board.  The requested hearing was conducted in June 2010 by the undersigned Veterans Law Judge.  A transcript is associated with the claims file.

In November 2010, the Board remanded this claim for additional development.  Unfortunately, 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

The Veteran seeks entitlement to service connection for osteoarthritis of the left knee.  He asserts he injured his left knee during service and continues to experience pain.

The duty to assist includes assisting in the procurement of service treatment records and pertinent post-service treatment records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012).  

The Board finds the duty to assist has not been met.  A May 1959 treatment record indicates the Veteran was admitted to Sandia Surgical Hospital for treatment of a left knee laceration.  Additionally, his separation examination from June 1960 indicates that he was hospitalized for one month at the Sandia Army Hospital in New Mexico for a severe laceration of the left patella.  These records have not been obtained.  38 U.S.C. § 5103A(b)(3) requires that VA continue any attempts to get federal records "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."  An attempt should be made to obtain these records.  

Accordingly, the case is REMANDED for the following actions:

(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 all updated and non-duplicative VA treatment records.

2.  Obtain the treatment records from 1959 at the Sandia Army Hospital in New Mexico, where the Veteran was treated for a month.

If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.  

The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims.  The claimant must then be given an opportunity to respond.

3.  The RO should then readjudicate the claim.  If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. 

Thereafter, the case should be returned to the Board, if appropriate.  The Board intimates no opinion as to the ultimate outcome of this case.  

The Veteran 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. 2012).



_________________________________________________
WAYNE M. BRAEUER
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).