Citation Nr: 1320532	
Decision Date: 06/26/13    Archive Date: 07/05/13

DOCKET NO.  09-18 918	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to service connection for a right knee disability.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Kroes, Counsel

INTRODUCTION

The appellant served in the Army National Guard, to include during a period of active duty for training (ACDUTRA) from January 1985 to October 1985.    

This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2008 decision of the New York, New York, Department of Veterans Affairs (VA) Regional Office (RO).  

In January 2011, the appellant testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of this hearing is associated with the claims file.  The record was held open after the hearing for an additional 60 days so that the appellant could submit additional evidence; however, no additional evidence was received by VA.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

While further delay is regrettable, the Board finds that further development is required prior to adjudicating the appellant's claims.  See 38 C.F.R. § 19.9 (2012).  

The appellant indicates that she injured her right knee when she fell from a ladder during a two week period of ACDUTRA in 1989.  Board Hearing Tr. At 4; see also Statement in Support of Claim from the appellant received October 8, 2008.  According to the National Personnel Records Center (NPRC), the appellant's reserve service included a period of ACDUTRA from January 1985 to October 1985, and then she "reverted back to the reserves" until 1989.  Service treatment records obtained thus far only detail the initial period of ACDUTRA in 1985.  Service treatment and personnel records for the entirety of the appellant's reserve service need to be obtained.  

At the appellant's hearing, she identified relevant private medical records and was afforded a period of 60 days to submit the records or submit authorization for VA to obtain the records.  She did neither.  Without the appellant's assistance, these records cannot be obtained.  This remand is another opportunity for the appellant to submit additional evidence or provide authorization to VA to obtain such evidence and she is encouraged to do so.  The Board notes that no medical evidence has been received showing a current right knee disability or right knee complaints since service.  Such evidence would be helpful to the appellant's claim.  

Accordingly, the case is REMANDED for the following action:

1.  Request the appellant's service treatment and personnel records for the entirety of her service.  If such records are not available the AOJ should make a finding as to whether further attempts to obtain such records would be futile and notify the appellant that the records are unavailable.

2.  The AOJ should conduct any other development as may be indicated as a consequence of the action taken in the preceding paragraph.  For example, if additional evidence suggests that the appellant may have a right knee disability related to her service the AOJ should consider whether a VA medical examination and opinion is warranted.  

3.  Then, the record should again be reviewed.  If the benefit sought on appeal remains denied, the appellant should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto.  

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 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).



_________________________________________________
Laura H. Eskenazi
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).