Citation Nr: 0002588 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 97-34 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for right leg disability, to include of the right knee. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jason R. Davitian, Associate Counsel INTRODUCTION The veteran had unverified active service from January 1980 to July 1982, and verified active service from September 1990 to May 1991. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan, (RO), which denied the benefit sought on appeal. REMAND The veteran maintains, in substance, that he incurred a right leg injury during military service. Therefore, a favorable determination has been requested. In his claim for VA disability benefits, received in May 1991, the veteran reported dates of service to include from January 16, 1980 to July 23, 1982, in the Army, and that he had served as an Army reservist from July 23, 1982 to the present. While confirmation of such service is not of record, a DD Form 214 of record reflects active service prior to September 19, 1990 of two years, six months and 8 days duration. Attempts to obtain the veteran's complete service medical records from the National Personnel Records Center have been unsuccessful. Service medical records submitted by the veteran, dated from 1980 to 1982, include evidence of complaints and treatment of right leg pain in 1982. Moreover, the record does not reflect a request for the veteran's service personnel records from the appropriate sources. Development in this regard would be useful in the adjudication of the appeal. In correspondence received in November 1996, the veteran stated that he wished to reopen his service connection claim for both legs, and noted that he had received "additional" treatment at the VA Medical Center (VAMC) at Allen Park, Michigan. The identified Allen Park VAMC treatment records are potentially relevant to the veteran's claim for service connection for a right leg disability, and should be associated with the claims file. Additionally, the veteran's November 1996 statement implies that he had received VA treatment for a leg disability prior to November 1996. Records of such VA treatment may show continuity of symptomatology since the veteran's separation. In addition, such VA records may contain evidence of current disability and a nexus to findings made during his active service. Most important is the fact that since the Allen Park VAMC treatment records are already in the custody of VA, a well- grounded claim is not a prerequisite for associating them with the veteran's claims file. "[T]he Secretary had constructive, if not actual, knowledge of those items [generated by the VA]." Bell v. Derwinski, 2 Vet. App 611, 613 (1992). The Board also notes that in February 1997 the veteran submitted a VA Form 21-4142, Authorization for Release of Information, for records of medical treatment from April 1996 to the present by a Dr. Gordon Moss. The RO did not attempt to obtain such records. The Board finds that while VA is under an obligation to obtain the veteran's VA medical records, VA is under no similar obligation to obtain the indicated private medical records at this time. First, no decision has yet been made as to whether the veteran's claim is well-grounded in the absence of consideration of the aforementioned VA medical records of which the VA has notice, and therefore the statutory duty to assist the veteran in developing his claim does not yet apply. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.159(a) (1999). Moreover, the duty to assist does not attach where the evidence, even if obtained, would make no difference in the result of the case. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). In this regard, it is noted that the veteran testified during a May 1998 RO personal hearing that Dr. Moss had never offered or discussed an opinion as to whether the veteran's alleged current right leg findings were related to the veteran's active service, or injuries incurred therein. Nevertheless, the absence of a current duty to assist does not preclude obtaining such records when to do so, at this time, could preclude further delay in final adjudication of the appeal. In light of the above, and in order to give the veteran every consideration with respect to the present appeal, it is the Board's opinion that further development is necessary. Accordingly, this case is REMANDED for the following action: 1. The RO should take all necessary action to obtain verification of the specific dates of the 2 years, 6 months, and 8 days active service prior to September 19, 1990, referenced in the DD Form 214 of record, to include service personnel records and available service medical records, not already of record. The veteran should be contacted for any additional information necessary in obtaining such confirmation. 2. The RO should attempt to obtain copies of any pertinent records, not already in the claims file, of VA medical treatment for disability of the right leg, especially records regarding medical treatment at the Allen Park VAMC, since service, and reports of treatment by Dr. Gordon Moss since April 1996. 2. Then, in light of the additional evidence obtained pursuant to the requested development, the RO should readjudicate the veteran's claim for service connection for right leg disability. If the benefit sought is not granted, where a timely notice of disagreement is of record, the veteran and his representative should be furnished a supplemental statement of the case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of the REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence he desires to have considered in connection with his current appeal. No action is required of the appellant until he is notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). U. R. POWELL 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).