Citation Nr: 0708154 Decision Date: 03/19/07 Archive Date: 04/09/07 DOCKET NO. 02-11 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for residuals of a right knee injury. 2. Entitlement to service connection for residuals of a low back injury. REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD Debbie A. Riffe, Counsel INTRODUCTION The veteran, who is the appellant, served on active duty August 1976 to August 1979 and from October 1982 to February 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In January 2004, the Board remanded the case to the RO for additional development. Thereafter, the case was returned to the Board for further appellate consideration. In an August 2005 decision, the Board denied the veteran's claims of service connection for residuals of injuries to the right knee and low back. The veteran appealed the August 2005 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2006 Order, the Court granted a Joint Motion to Remand of the parties (the VA Secretary and the appellant), vacated the Board's August 2005 decision, and remanded the case back to the Board pursuant to 38 U.S.C. § 7252(a) for readjudication consistent with the Motion. As noted by the Board in its August 2005 decision, the veteran raised additional issues of service connection for various disorders. The RO subsequently addressed them with the exception of a dental disability, which is hereby referred again to the RO for further appropriate consideration. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND In the Joint Motion to Vacate and Remand dated in June 2006, the parties indicated that VA did not fully satisfy its duties to notify and assist the veteran in this case, pursuant to The Veterans Claims Assistance Act of 2000 (VCAA). As for the duty to assist, nearly the entire medical record of the veteran's first period of service (except for the entrance examination report) was missing, and it was noted that the record did not reflect that VA made reasonable efforts to obtain them. As for the duty to notify, it was noted that VA in its two VCAA notice letters failed to indicate that VA was unable to obtain the veteran's missing service medical records and also failed to advise the veteran that he should submit alternate forms of evidence to corroborate his contention that he experienced an in-service occurrence that resulted in his claimed disabilities. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC), or any other appropriate agency, and again request the service medical records of the veteran relevant to his first period of service from August 1976 to August 1979. If no service records can be found, or if they have been destroyed, the RO should ask for specific confirmation of that fact. Any negative replies should be clearly indicated in the record. Notify the veteran of the results. 38 C.F.R. § 3.159(e). 2. Ensure VCAA compliance with Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); and Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim). In so doing, contact the veteran and request that he furnish any alternate evidence - lay, medical, or otherwise - in support of his claims that he experienced an in-service occurrence that resulted in his right knee and low back disabilities. Examples of such evidence include "buddy" statements, statements from service medical personnel, letters written and photographs taken during service, and medical opinions. 3. If deemed necessary based on receipt of any additional service medical records or alternate forms of evidence corroborating the veteran's claims of the incurrence of right knee and/or low back injury during service, arrange for the veteran to undergo a VA examination. The claims folder must be made available to and reviewed by the examiner in conjunction with the examination. The examiner is requested to furnish an opinion as to whether it was at least as likely as not that any current right knee disability and any low back disability found on examination are due to injury or disease during the veteran's periods of service from August 1976 to August 1979 and from October 1982 to February 1985. 4. After the above development is completed, adjudicate the claims. If any benefit sought on appeal remains denied, furnish the veteran a supplemental statement of the case and return the case to the Board. 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 United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ GEORGE E. GUIDO JR. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2006).