Citation Nr: 1331945 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 13-07 313 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for residuals of a gunshot wound injury to the right hip. 2. Entitlement to service connection for residuals of injury to the right knee. 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 has verified active service with the United States Army from October 1950 to February 1951. He had verified active service with the United States Air Force from July 1951 to July 1955. This matter comes before the Board of Veterans' Appeals (Board) from a May 2012 RO decision. The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in August 2013. In May 2012, the Veteran submitted a claim for entitlement to service connection for a disability involving his left ankle. It does not appear that any action has been taken on this claim by the RO. Therefore, the Board does not have jurisdiction over it, but it is referred to the RO for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND During the August 2013 hearing, the Veteran testified that he sustained two separate injuries in two separate incidents which both occurred during basic training of his first period of service. The first injury involved a gunshot wound to the Veteran's right hip where "the fella behind me had chambered a round," which accidently discharged during target practice, hitting the Veteran. The Veteran testified that he lost consciousness and was taken to the hospital where he was given a couple of stitches and some aspirin. He does not claim any particular current disability other than a small scar as a residual of this accident. The second incident he related during the hearing involved his right knee. He described an exercise where he was in an assault boat crossing a river, and an explosion was deliberately set underneath the boat for purposes of training. He asserts that he injured his right knee during this explosion. He did not testify as to whether he received any medical care at the time of the injury, however. He testified that he had experienced swelling and pain in the right knee which had gotten progressively worse since that injury, however. Review of his recent VA treatment records shows that X-ray studies in May 2012 were interpreted as showing tri-compartment degenerative joint disease in both knees, but worse in the right knee. Another pertinent treatment record is an October 2012 bone scan which was interpreted as showing degenerative joint disease in the right knee which was likely to represent post-traumatic arthritis. Review of his file reveals that although service treatment records reflecting his second, Air Force, period of service have been associated with his file, service treatment records reflecting his first, Army, period of service, have not been associated. The RO requested such records from the Veteran's first period of service, but received an equivocal response from the National Personnel Records Center, indicating that no Army records had been identified. The response indicated that the correct branch of service should be verified, and then the request should be resubmitted. It does not appear that any further action was taken. Governing law and regulation require that VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2). The Veteran's August 2013 testimony provides an additional wrinkle in this regard. He testified that he had enlisted using his dead brother's birth certificate as he had been only sixteen years of age. There is no evidence corroborating this statement, as a certification of military service issued by the National Personnel Records Center in March 2011 contains the Veteran's own name and identifies his date of birth as September 1933, meaning he would have been seventeen years of age at his enlistment in October 1950. His contemporaneous discharge papers from the Air Force reflect a birthday of September 1933 as well. Thus, the Veteran's memory may be somewhat faulty in this regard, as it would appear the Army and the Air Force both recorded his identity using the same information. From the documentary evidence of record, however, we also conclude that the National Personnel Records Center does indeed have some record of the Veteran's service in the Army under his own name. In any case, the Board is not satisfied that further records, including medical records reflecting the Veteran's basic training experiences in 1950 and 1951, do not exist. Because contemporaneous records reflecting either or both incidents related by the Veteran would be highly probative of his claims, further effort to obtain them is required. With regard to the Veteran's claim that he has experienced progressive symptomatology in his knee since service, his VA medical records reflect that prior to being treated in the VA system, he was seen by "Moore Ortho" in the past. The Veteran is encouraged to provide the appropriate release to the VA so that VA may assist him in fully developing his claim by obtaining these records. The closer to service that his right knee symptoms can be traced, the more support such records would provide for the Veteran's service connection claim. He is encouraged to identify any other medical care for knee problems proximate to service as well. The Veteran's representative has requested that the VA obtain medical opinions as to any medical nexus to service with regard to both claims. 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). Expedited handling is requested.) 1. The RO should make another attempt to secure the Veteran's service treatment records reflecting his first period of service with the Army in 1950 and 1951 through official channels. If this attempt is unsuccessful, a request using the Veteran's brother's name should be attempted, taking all due and proper safeguards, to ensure that any records obtained in fact pertain to the Veteran. All steps taken to obtain these service records should be fully documented for the file. If it is determined that the records do not exist or that further efforts to obtain them would be futile, a memorandum detailing the reasons for this determination should be included in the claims file. 2. The RO should obtain the names and addresses of all medical care providers who treated the veteran for knee complaints since service. After securing the necessary release, the RO should obtain these records for inclusion in the claims file. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. Any additional evidentiary development should be accomplished at this point, to include obtaining any indicated medical opinions. If any 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 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 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). _________________________________________________ Michelle L. Kane 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).