Citation Nr: 1633073 Decision Date: 08/19/16 Archive Date: 08/26/16 DOCKET NO. 12-36 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a disability of the right upper extremity, to include the wrist. 2. Entitlement to service connection for a lower back disability. 3. Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran appears to have had honorable active duty service from July 1976 to June 26, 1979. He was discharged for immediate reenlistment, went absent without leave on November 2, 1981, was dropped from the rolls as a deserter on December 2, 1982 until captured and returned to military control on October 18, 1985. He was discharged in December 1985 under other-than-honorable conditions. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this case in September 2015. The Veteran was scheduled for a Travel Board hearing before a Veterans Law Judge in September 2015. Prior to the hearing the Veteran contacted VA and indicated that he would be unable to attend the hearing, and he did not attempt to reschedule. The Board accordingly deems the Veteran's hearing request to be withdrawn. See 38 C.F.R. § 20.704(e) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Veteran has asserted that his disabilities arose from a motor vehicle accident during his first period of service, the records do not reflect such. On his application for benefits, the Veteran reported the disabilities arose in 1977. Efforts to obtain hospital reports from Fort Knox, where he reports treatment for injuries in the accident, yielded a response showing only hospitalization in May 1979 for dental extractions. During that hospitalization, review of systems revealed no reports of a prior motor vehicle accident, no trauma, and no musculoskeletal complaints. Indeed, the Veteran was shown to have full range of motion. It is likely that the Veteran would have mentioned a roll-over jeep accident at that time when asked about trauma to the temporomandibular joint had such event occurred. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). A service treatment record dated in October 1980 noted the Veteran complaining of right thigh pain and giving a history of having an accident one year ago. He noted he had been going to physical therapy from July to November 1979 with no help. No description of the accident was provided. Thus, it appears the accident the Veteran is referring to in his claim may have occurred in July 1979, rather than 1977 as initially reported. Service after June 26, 1979 is during a period that was terminated by an other than honorable discharge. Accordingly, an administrative decision addressing the character of discharge for service after the June 26, 1979 discharge is needed. See 38 C.F.R. § 3.12. Additionally, the Veteran reported to VA treatment providers that he has had surgery on his left knee and his right wrist. No records reflecting such treatment are of record. Such records should be requested on remand. Updated treatment records should also be requested. Accordingly, the case is REMANDED for the following actions: 1. After providing appropriate notice to the Veteran that a character of discharge determination is necessary and conducting any additional development deemed necessary, adjudicate the issue of the character of discharge for the Veteran's active service apparently beginning June 27, 1979. 2. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his claimed disabilities, to include his left knee and right wrist surgeries. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 3. After conducting any additional development deemed necessary, to include scheduling VA examinations if and only if service after June 26, 1979 is deemed honorable for VA purposes, the Veteran's claims should be readjudicated. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. 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). These claims 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 2014). _________________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).