Citation Nr: 21072544
Decision Date: 12/03/21	Archive Date: 12/03/21

DOCKET NO. 19-01 989
DATE:       December 3, 2021

REMANDED

Entitlement to service connection for residuals of a right leg fracture. is remanded.

Entitlement to service connection for a knee condition, to include as secondary to residuals of a right leg fracture, is remanded.

Entitlement to service connection for a low back disability, to include as secondary to residuals of a right leg fracture, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from June 1971 to March 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2015 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). 

The Veteran testified at a hearing before the undersigned in September 2020. A transcript of the proceeding is of record. 

1. Entitlement to service connection for residuals of a right leg fracture is remanded.

2. Entitlement to service connection for a knee condition, to include as secondary to residuals of a right leg fracture, is remanded.

3. Entitlement to service connection for a low back disability, to include as secondary to residuals of a right leg fracture, is remanded.

The Veteran contends that, while stationed in Korea, she slipped and fell down a hill and fractured her right leg. At that time, she was treated at the 121st Evacuation Hospital in Seoul, South Korea. Her service treatment records (STRs) reflect that she had been prescribed crutches, but the reason for wearing crutches was not documented. Her military reports of military history in 1983 and 1987 reflect no history of broken bones, recurrent back pain or a trick or locked knee.

Given the evidentiary conflict, an attempt should be made to determine whether there are any available records at the 121st Evacuation Hospital in Seoul, South Korea. Additionally, the Board notes that VA records are generally considered within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The record reflects that the Veteran was hospitalized at a VA facility in June 1991. See VA Form 10-7131 received June 1991. These records are not associated with the claims folder, and must be obtained prior to further adjudication.

The Board defers consideration of additional VA examination pending receipt of the additional development directed above in order to make proper factual determinations. See generally Kahana v. Shinseki, 24 Vet. App. 428 (2011) (discussing the "chicken-or-egg" dilemma faced by the Board when requesting opinions and making credibility determinations with an undeveloped record). 

The matters are REMANDED for the following action:

1. Obtain complete VA clinic records including any existing paper records dating back to, at least, June 1991. See VA Form 10-7131 received June 1991. 

2. Obtain records of any treatment at 121st Evacuation Hospital in Seoul, South Korea from 1973 to 1974. Document all requests for information as well as all responses in the claims file.

3. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond.

 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Patrick C. Brady, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.