Citation Nr: 1804815	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  14-11 944	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for a right knee condition. 

2. Entitlement to service connection for an back condition.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. Vample, Associate Counsel
INTRODUCTION

The Veteran served in the Navy from June 1978 to February 1986. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

The Veteran testified at a October 2017 videoconference hearing before the undersigned Veterans Law Judge.  A hearing transcript is of record. 

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


REMAND

The Veteran seeks service connection for a back condition and a right knee condition.  During his October 2017 hearing, he asserted that his disabilities are due to climbing through hatches and scraping his knees and from suffering a fall after climbing up and down decks while in the Navy. 

Initially, the Board notes that the VA is unable to locate the Veteran's service treatment records.  In September 2011, VA made a formal finding on the unavailability of service treatment records.  However, the record includes a notation that a CD was received in July 2014 that was either unscannable or corrupted.  It is unclear whether an attempt was ever made to obtain a new CD copy, or if obtaining one is even possible.  

When the possibility is raised that a veteran's service treatment records may be unavailable, there is a heightened obligation to assist the appellant in the development of the case, to explain findings and conclusions, and to consider carefully the benefit of the doubt rule in cases such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government.  See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file any outstanding VA treatment records pertaining to the issue on appeal.  Invite the Veteran to submit any further evidence in support of his claim.

2. Attempt to obtain a new copy of the CD previously noted to be unscannable, if possible.  If it is apparent that the digitally stored information is unreadable, it would be helpful if the RO make a notation that all methods to otherwise obtain these records has been undertaken.

3. The RO should undertake any additional development deemed necessary in the adjudication of these claims, to include any VA examinations

4. Following any additional development, the RO should review the claims file and readjudicate the Veteran's claims for entitlement to service connection for a right knee condition and back condition.  If the benefits 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 before the case is returned to the Board. 

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. §§ 5109B, 7112 (2012).




_________________________________________________
B.T. KNOPE
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), 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) (2017).