Citation Nr: 0004401 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 97-27 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for residuals of a left knee injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel INTRODUCTION The veteran had active military service from April 1950 to April 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In that rating action, the RO denied service connection for residuals of a left knee injury. REMAND In a statement dated in January 2000, the veteran's representative contended that the veteran's claim of entitlement to service connection for residuals of a left knee injury is meritorious because the veteran injured this joint during his active service. Upon a complete and thorough review of the record, the Board opines that, before an equitable disposition may be made of this claim, further development of the evidence must be sought. In this regard, the Board notes that included in the veteran's claims folder are copies of two Morning Reports dated in September 1951. No additional service medical records are contained in the claims file. Additional documentation in the claims file indicates that in August 1996 the RO was informed by the National Personnel Records Center (NPRC) that the veteran's service medical records were not on file at the agency and were presumed to have been destroyed in the 1973 fire. Following this communication, the veteran executed NA Form 13055, Request for Information Needed to Reconstruct Medical Data (Form 13055), as well as NA Form 13075, Questionnaire About Military Service (Form 13075), and returned the documents to the RO in November 1996. In the completed Form 13055, the veteran explained that he had received treatment for his left knee at a hospital in Frankfurt, Germany for six to eight weeks in the summer of 1951. Later in November 1996, the RO sent the completed Form 13055 and Form 13075 to the NPRC along with another request for the veteran's complete service medical records. (In a January 1997 statement, the veteran informed the RO that he thought that he had been hospitalized in Mannheim, Germany.) In April 1997, the NPRC furnished the RO with the copies of the two Morning Reports dated in September 1991 and also advised the RO that no other service medical records were available. Thereafter, in November 1997, the RO asked the NPRC to search for service medical records reflecting left knee treatment that the veteran may have received between June and September 1991 in Mannheim, Germany. The RO responded in January 1998 that the records could not be reconstructed. Further review of the claims folder indicates that, in September 1998, the RO asked the veteran to furnish information concerning all treatment that he may have received for his left knee since his discharge from service. The veteran replied in a writing received later in that month that he had been treated only at the James J. Howard VA facility. Records concerning the veteran's treatment at this medical facility have been obtained and associated with the claims file. According to the May 1997 rating decision as well as the May 1999 supplemental statement of the case, the RO has denied the issue of entitlement to service connection for residuals of a left knee injury on the basis that the claim is not well grounded. The RO has explained that the record contains no evidence that a left knee disability had been incurred in, or aggravated by, the veteran's active military duty. Because the RO has already made several attempts to obtain the veteran's service medical records and these efforts have proven to be unsuccessful, the veteran's service medical reports appear to be unavailable. Importantly, however, the Board believes that it would be premature to conclude that all evidence necessary for an equitable disposition of the veteran's service connection claim has been obtained. Especially due to the fact that the veteran's claim is a fire-related case, further effort must be made to develop the record by assembling alternative types of available evidence. The existing record indicates that the veteran's application for benefits is incomplete. When an application for benefits is incomplete, the Secretary has a duty under 38 U.S.C.A. § 5103(a) to inform the claimant of what evidence is necessary to complete or substantiate the claim, including evidence likely to render the claim plausible, or well- grounded. See 38 U.S.C.A. § 5103(a) (West 1991); Robinette v. Brown, 8 Vet. App. 69 (1995); see also Voerth v. West, 13 Vet. App. 117 (1999). Beyond its duty under 38 U.S.C.A. § 5103(a), VA has no statutory duty prior to a finding that a claim is well grounded to assist a claimant in developing additional evidence pertinent that claim. 38 U.S.C.A. § 5107(a) (West 1991); Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). However, because this case involves a matter in which the medical records of the veteran from service are unavailable and presumed destroyed in the fire of 1973 at the NPRC, additional principles are to be observed by VA. The Department of Veterans Affairs Adjudication Procedure Manual provides that alternate sources of evidence may be utilized in fire-related cases. Documents from the following non- exhaustive list may be submitted: statements from service medical personnel, "buddy" certificates or affidavits, state or local accident and police reports, employment physical examinations, medical evidence from hospitals, clinics and private physicians by which or by whom a veteran may have been treated (especially soon after discharge), letters written during service, photographs taken during service, pharmacy prescription records, and insurance examinations. VA Adjudication Procedure Manual, M21-1, Part III, Paragraph 4.25 (c) and 4.29 (b) (October 6, 1993) previously numbered as 4.06 and 4.07. The veteran should be informed of the types of alternative evidence that he may submit. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should advise the veteran in writing that his service medical records are unavailable and presumed destroyed and that he can submit alternative evidence to support his contention that service connection is warranted for residuals of a left knee injury. This evidence may take the following forms (although he may submit any other evidence that he finds appropriate): statements from service medical personnel, "buddy" certificates or affidavits, state or local accident and police reports, employment physical examinations, medical evidence from hospitals, clinics and private physicians by which or by whom the veteran may have been treated (especially soon after discharge), letters written during service, photographs taken during service, pharmacy prescription records, and insurance examinations. A copy of the RO's notice to the veteran concerning his opportunity to submit alternative evidence should be placed in the claims file. 2. After the veteran has been given an appropriate amount of time in which to submit additional evidence, the RO should then review his claims file. Any additional development indicated by any evidence received pursuant to paragraph 1 of this Remand should be undertaken. Thereafter, the RO should again review the entire record and adjudicate the veteran's claim for service connection for residuals of a left knee injury. If the benefit sought on appeal is not granted, the veteran and his representative should be provided with a supplemental statement of the case. After the veteran has been given opportunity to respond to the supplemental statement of the case, the case should be returned to the Board for further appellate consideration. The veteran need take no action until he is informed, but he may furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995); and Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this remand is to comply with governing adjudicative procedures and to obtain clarifying evidence. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. THERESA M. CATINO Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).