Citation Nr: 1612934	
Decision Date: 03/30/16    Archive Date: 04/07/16

DOCKET NO.  09-39 280	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the thoracolumbar spine.  

2. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the left knee.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

E. Skiouris, Associate Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from June 1982 to June 2008, and August 2008 until August 2011.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Louisville, Kentucky, Department of Veterans Affairs (VA) Regional Office (RO); which granted service connection for low back and left knee disabilities, each evaluated as 10 percent disabling, effective July 1, 2008.

In September 2010, a hearing was held at the RO before the undersigned.  A transcript of the hearing is associated with the Veteran's claims file.  

In February 2011 and March 2014, the Board remanded the appeal for additional development.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

As noted above, the case was most recently remanded in March 2014, to obtain 
service treatment records for the Veteran's period of active service from August 2008 through August 2011.  The AOJ was to ensure a definitive response from the service department as to whether it does, or does not, have treatment records for the Veteran's active service from August 2008 to August 2011.  

In April 2014, the Appeals Management Center (AMC) sent correspondence to VA's Records Management Center, requesting service treatment records for the Veterans active service from "August 2008 to August 2001." 

A response was received in April 2014, from the Record Management Center indicating it had located requested records, but these consisted of dental records only.  They were uploaded to VBMS, but these pertained to the period prior to August 2008.  

In June 2014, the AMC sent another request to the Records Management Center for the Veterans service treatment records from "August 2008 to August 2001."  There is no indication of a response to this request in the claims file and the AMC did not specifically request the correct records.  

Under 38 C.F.R. § 3.159(c)(2), efforts to obtain federal records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them.

Accordingly, the case is REMANDED for the following action:

1. Request the service treatment records from the Veteran's active service from August 2008 to August 2011, from any repository indicated by the M-21 adjudication procedures manual or otherwise. 

Ensure that VA has received a definitive response as to whether it does, or does not, have treatment records for the Veteran's active service from August 2008 to August 2011.  

2. If the records are not available, insure that alternate sources are searched.
3. If there is evidence of a change in the Veteran's low back or left knee disability since the last VA examinations; afford him new examinations.   

4. If the benefits sought on appeal are not fully granted, issue a supplemental statement of the case.  Then return the case to the Board, if otherwise in order.  

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).




_________________________________________________
Mark D. Hindin
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).