Citation Nr: 1322732 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 11-07 946 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served for more than forty years with the Illinois Army National Guard and the United States Army Reserves. He had active service from September 1948 to June 1952, to include service during the Occupation of Germany, and was again activated from February 1991 to July 1991, to support Operation Desert Shield/Storm. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 RO decision. The Veteran presented sworn testimony in support of his appeal during a May 2013 hearing on appeal held via videoconference before the undersigned Acting Veterans Law Judge. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 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 Veteran when further action on his part is required. REMAND The Veteran contends that he injured his knee in Germany in 1950 or 1951. He reports that he was examined and received some treatment at the Battalion Aid Station in Aschaffenburg, Germany. He states he did not seek further medical care for his knee at that time. Since that time, he has undergone total knee replacement surgery. During the May 2013 hearing on appeal, the Veteran explained that after the initial injury to his right knee, he continued to experience difficulties with the knee, although he did not report the knee problems again, because he enjoyed his military career and was afraid of being discharged on account of disability. Unfortunately, the Veteran's early military medical records have not been associated with his file. Indeed, in January 2011, the RO made a formal finding of unavailability. However, upon closer review, the Board determines that this finding was premature, as several potential repositories remain to be searched. These records would provide the best evidence as to the condition of the Veteran's knee following his 1952 discharge from active duty. In a March 2011 statement the Veteran wrote that he had had X-ray studies of the knee taken at Fort Sheridan, Illinois, prior to his 1952 discharge. Thus, it appears that such critical evidence was generated; it therefore is the VA's responsibility to turn over every stone in the search for these records. The Veteran's representative requests that in light of the Veteran's extensive military service in various components of the Army, the Army Reserves, and the Illinois National Guard, that a full history of his military service, to include units of assignment should be obtained so that appropriate requests for original service treatment records can be made. The representative also noted that no requests to the Illinois State Adjutant General's Office have yet been made. In the Veteran's March 2011 written statement in support of his appeal, he indicated that he may have filed a VA claim for dental care and for his right knee in 1952. If so, then the VA itself may have relevant documents in storage. Also supporting this theory is an August 2007 certification from the National Personnel Records Center stating that the Veteran's service treatment records were provided to the VA at some point in the past. Therefore, prior to further review of this claim, the RO should search its storage repositories to discover whether an old claims file pertaining to the Veteran may have been created in the early 1950s. More recent medical records may also be helpful to support the Veteran's claim for service connection for a right knee disability. Review of the available VA treatment records, dated in 2007, reveals that the Veteran had re-established VA medical care after a hiatus of thirteen years away from the VA medical system. Although the RO unsuccessfully requested VA medical records from the Jesse Brown VA Hospital, the request was limited to the years 1952 and 1953. As we now have confirmation that the Veteran received VA medical care in 1994 and possibly for many years prior, these records should be obtained for inclusion in his claims file. VA medical records are deemed to be constructively of record in proceedings before the VA. Bell v. Derwinski, 2 Vet. App. 611 (1992). Lastly, the transcript of the May 2013 videoconference hearing reflects that the Veteran brought copies of records reflecting his private medical care, to include the reports of his recent right knee replacement surgery, to the hearing. These records have not yet been associated with his claims file for Board review. In any case, copies of medical records reflecting private medical care for the Veteran's knee over the years may support the Veteran's claim as well, and should be obtained for review by adjudicators. 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) (2011). Expedited handling is requested.) 1. The RO should contact the Veteran to obtain a full history of his military service from 1948 until 1991 until or his retirement from the National Guard, if such occurred after 1991, to include units of assignment. Then make appropriate requests for outstanding original active, reserve and National Guard service treatment records and service personnel records. 2. The RO should specifically make a request to the Illinois State Adjutant General's Office for any records pertaining to the Veteran which are on file with that office. 3. Any other sources of service treatment records revealed by the information provided in response to the first request above should be contacted to obtain any service records pertaining to the Veteran. The RO should make as many requests to these sources as are necessary to obtain the records. VA should end its efforts only if VA concludes that the records sought do not exist or that further efforts to obtain them would be futile. In this case, a memorandum should be prepared for the file detailing the steps taken to search for the Veteran's extant service records. 4. The RO should follow all procedures to determine whether a claims file pertaining to the veteran was created in the early 1950s, to include searching all appropriate storage repositories. Again, VA should end its efforts only if VA concludes that no such claims file exists or that further efforts would be futile. In this case, a memorandum should be prepared for the file detailing the steps taken to search for an old claims file. 5. The RO should obtain all records of VA medical treatment afforded to the Veteran between 1952 and 1995 at all Chicago-area VA Medical Centers and related clinics, for inclusion in the file. 6. The RO should obtain the names and addresses of all medical care providers who have treated the veteran for his right knee disability. After securing the necessary release from the Veteran, the RO should obtain these records for inclusion in the claims file. 7. After the development requested above has been completed to the extent possible, the RO should again review the record. Any temporary file currently maintained at the RO must be associated with the Veteran's claims file. Any additional evidentiary development which is indicated at this point, such as obtaining a medical nexus opinion, should be accomplished. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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 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). _________________________________________________ M. TENNER Acting 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).