Citation Nr: 1336391	
Decision Date: 11/07/13    Archive Date: 11/13/13

DOCKET NO.  09-33 238	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for a right knee disability for accrued benefits purposes.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Appellant



ATTORNEY FOR THE BOARD

Patricia Veresink, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1972 to January 1976.  The Veteran passed away in December 2007.  The appellant is his surviving spouse.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

The appellant testified at a hearing at the RO before the undersigned Veterans Law Judge in May 2013.  A transcript of the hearing has been associated with the claims file.  

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

The Board remanded the issue for further development in July 2013.  As part of that development, the RO was instructed to obtain a VA nexus opinion regarding whether the Veteran's right knee disability was causally related to his right knee injury during service.  Because this is a claim for accrued benefits, evidence proper for consideration is limited to that which was in VA's possession on or before the death of the Veteran, even if not physically located in the claims file.  38 C.F.R. § 3.1000.  As such, upon further reflection, it was inappropriate to obtain a nexus opinion.  However, the Board also requested additional service records, and since these are Federal records, that effort does not run afoul of this regulation.  In this regard, the Board sought records for treatment the Veteran received from a dispensary in Germany that would have been dated in May 1973, and from an Army hospital in Germany that would have been dated in July 1973.  It appears from the wording of the RO's subsequent request for records, however, that only records from the dispensary were sought.  (None were located.)  An effort to obtain records of the Veteran's in-patient treatment at the 2nd General Hospital in Germany dated in July 1973, should be made.    

Accordingly, the case is REMANDED for the following action:

1.  Attempt to obtain any inpatient/clinical records pertaining to the Veteran's treatment at the 2nd General Hospital  (APO 09180) in July 1973.  (The record indicates the Veteran was admitted on July 13, 1973.)  All actions taken to obtain the requested records should be documented.  

2.  Then readjudicate the claim.  If the claim continues to be denied, send the appellant and her representative a supplemental statement of the case and allow them time to respond.  

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 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).



_________________________________________________
MICHAEL E. KILCOYNE
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).