Citation Nr: 1327287	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  02-15 984	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to service connection for a left knee disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARINGS ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

R. Kessel, Counsel


INTRODUCTION

The appellant enlisted in the Army National Guard in July 1982 and was a member until August 1991.  While a member of the Army National Guard, he had various periods of active duty training (ACDUTRA) and inactive duty training (INACDUTRA), including one initial period of ACDUTRA in the Army from September 27, 1982, to February 15, 1983, and one day of INACDUTRA on December 29, 1990.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

The case was most recently before the Board in August 2011.  At that time, the Board denied the claim on the merits.

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

As noted in the introduction, the Board denied entitlement to service connection for a left knee disorder in an August 2011 decision.  The Veteran then appealed the decision to the United States Court of Appeals for Veterans Claims (Court).  In November 2012, for the reasons detailed below, VA's General Counsel filed a unilateral motion for vacatur and remand.  In January 2013, the Court granted the motion and remanded the case to the Board for action consistent with the terms of the motion.  Thus, the Board must remand this matter for compliance with the Court's January 2013 order granting VA's General Counsel's motion.  See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006); Stegall v. West, 11 Vet. App. 268, 271 (1998).

After the Veteran appealed the August 2011 Board decision, the RO mailed the claims file by United Parcel Service (UPS) to VA's Office of General Counsel in August 2012.  At that time, the claims file consisted of two volumes.  Unfortunately, the claims file never arrived at VA's Office of General Counsel and it was determined to be missing.  One volume of the claims file was returned to the RO; however, the second volume could not be located by UPS after an investigation into its whereabouts.  The RO worked on reconstructing some of the claims file and VA's General Counsel provided a copy of the record it had at one point in 2008.  In light of the fact that VA could not produce the complete record considered by the Board when it issued the August 2011 decision, VA's General Counsel determined that the case must be remanded to allow the RO to reconstruct the Veteran's claims file and to produce a new decision based on the reconstructed file.  See 38 U.S.C.A. § 7252(b) ("Review in the Court shall be on the record of proceedings before the Secretary and the Board.").

Therefore, on remand, the RO is required to assist in the reconstruction of the Veteran's claims file to the extent possible.  Should the RO be unable to reconstruct the missing volume of the Veteran's claims file in its entirety, he must be notified of that fact, and that his claim may be adjudicated without the complete claims file.  See 38 C.F.R. § 3.159(e).  

Accordingly, this case is REMANDED for the following actions:

1.  Take the necessary steps to locate missing volume two of the Veteran's claims file.  If it cannot be located, reconstruct the Veteran's complete claims file to the extent possible.

2.  Notify the Veteran of the results of the above activity.  Inform him that his claim may be adjudicated without the complete claims file if volume two is not located or cannot be completely reconstructed. 

3.  Undertake any development deemed necessary.

4.  Finally, adjudicate the issue of entitlement to service connection for a left knee disorder based on the current record.  If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review.

No action is required of the Veteran until he is notified by VA.  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 case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



_________________________________________________
KATHLEEN K. GALLAGHER
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 Court.  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).