Citation Nr: 1605994 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 09-12 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for onychomycosis. 2. Entitlement to service connection for a right knee disability, to include status post total knee replacement. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Wendell, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to March 1969, with additional periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) as part of the Army Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge (AVLJ) in October 2009. A transcript of the hearing is associated with the electronic claims file. The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's claim was previously remanded by the Board in February 2014 for further development. Specifically, the Board requested that the RO make all necessary inquiries to ascertain the dates of any periods of ACDUTRA or INACDUTRA. To this end, in May 2015 the RO sent two separate requests for the Veteran's leave and earning statements, with the first covering the period from March 1975 to June 1993 and the second covering the period from July 1993 to July 2004. In June 2015 two responses from the Defense Finance and Accounting Service were received, each of which contained leave and earning statements covering the period from March 1975 to June 1993. However, neither response contained any statements concerning the period from July 1993 to July 2004, despite the fact that the Veteran did not retire until 2006. Further, in both responses from the Defense Finance and Accounting Service, the only request for records that is referenced is the request for the period from March 1975 to June 1993. As such, it appears that the request for statements from July 1993 to July 2004 was not processed. As this is the period during which the Veteran was noted to have right knee and foot skin issues in his service treatment records, it is of particular importance that his dates of ACDUTRA and INACDUTRA be determined through his leave and earning statements. As not all of the Veteran's periods of ACDUTRA or INACDUTRA were ascertained, specifically any periods falling in the span of time from July 1993 to July 2004, the Board must remand the claim so that the instruction can be complied with. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Further, VA has a duty to assist in the procurement of relevant records. 38 C.F.R. § 3.159. When private treatment records have been authorized for release, but VA has been unsuccessful in its attempts to obtain them, the Veteran must be notified of the records they attempted to obtain, the efforts made to obtain them, further actions VA was going to take on the claim, and that the Veteran was ultimately responsible for submitting the records. 38 C.F.R. § 3.159(e). In this case, in October 2007 the Veteran authorized for release treatment records from Birmingham Sports Medicine concerning his right knee surgery. VA requested these records in November 2007 and January 2008, with no response. 38 C.F.R. § 3.159(c)(1). The Veteran was provided with proper notice of VA's attempts to get these private records in January 2008. 38 C.F.R. § 3.159(e). In response to this notice, in February 2008 the Veteran submitted a new authorization for release form for Birmingham Sports Medicine, and provided a new mailing address for that facility. A subsequent May 2008 VA memorandum indicates that a letter was sent to the newly provided address, but was returned as undeliverable. However, following this memorandum, there is no evidence that the Veteran was notified of VA's inability to get the Birmingham Sports Medicine records at the new address he provided in February 2008. As such, the Board must remand the right knee claim so that proper notice of VA's inability to obtain the Birmingham Sports Medicine records at the most recent address can be provided, and the Veteran can be allowed the opportunity to submit the records himself. 38 C.F.R. § 3.159(e). Accordingly, the case is REMANDED for the following action: 1. In accordance with 38 C.F.R. § 3.159(e), notify the Veteran that (a) treatment records from Birmingham Sports Medicine could not be obtained; (b) briefly explain the efforts that were made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Make all necessary service department inquiries (e.g., the National Personnel Records Center and National Guard units in Missouri and Alabama) to ascertain the dates of any periods of ACDUTRA or INACDUTRA, specifically those falling within the period from July 1993 to July 2004. See May 28, 2015 DFAS Request. 3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the matter or 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 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 2014). _________________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).