Citation Nr: 1749056	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  09-12 271	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1. Entitlement to service connection for a bilateral knee disorder.

2. Entitlement to service connection for a back disorder, to include as secondary to a bilateral knee disorder. 


REPRESENTATION

Veteran represented by:	Adam Neidenberg, Attorney 


WITNESSES AT HEARING ON APPEAL

The Veteran and his daughter




ATTORNEY FOR THE BOARD

C. Taylor, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1956 to June 1959.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. A Notice of Disagreement (NOD) was filed in September 2007. A Statement of the Case (SOC) was issued in March 2009. A substantive appeal (VA Form-9) was filed in April 2009. Supplemental Statements of the Case (SSOC) were issued in November 2012, March and September 2013, and in March 2016.

In October 2011, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ). The transcript of the hearing is of record. 

The Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for further development in April 2012, January and April 2013, and in March 2015. 

In February 2014, the Board denied the service connection claim for a bilateral knee and a back disorder on the merits.  The Veteran appealed the Board's February 2014 decision to the United States Court of Appeals for Veterans Claims (Court).  In a November 2014 Joint Motion to Remand (JMR), the Court vacated the Board decision to the extent it denied the service connection claim and remanded the issue to the Board for additional action. In August 2016, the Board continued to deny the service connection claim. The Veteran appealed the Board's August 2016 decision to the Court. In a May 2017 JMR, the Court vacated the Board decision and remanded the issue to the Board for additional action. The appeal is now before the Board for further appellate action.  

The Board reviewed the Veteran's electronic claims file which includes records in Virtual VA and Veterans Benefits Management System (VBMS) databases prior to rendering its decision. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

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


REMAND

Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to assist the claimant in obtaining the evidence needed to substantiate a claim. 38 U.S.C.A. §5107(a), 5103A (West 2014); 38 C.F.R. §3.159 (2017). 

The Veteran seeks entitlement to service connection for a bilateral knee disorder and a back disorder. The Veteran contends that he was injured in 1958 while stationed in Germany when he fell off the back of a truck, parked on a runway, which was struck by an incoming/landing F-100 plane.

In a March 2015 remand, the RO was instructed to obtain evidence that an aircraft/vehicle accident occurred at Bitburg Airbase, Germany, approximately on February 20, 1958, including, but not limited to, obtaining flight logs. In December 2015, the RO issued a formal finding of a lack of information to corroborate the Veteran's claimed aircraft/vehicle accident. The RO received negative responses from the Joint Services Record Research Center (JSRRC), National Personnel Records Center (NPRC), and Personnel Information Exchange System (PIES). However, the responses did not include a discussion of, or indicate that the requested flight logs for the Veteran's unit were reviewed. As such, the development directed by the March 2015 remand was not accomplished. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 

As noted in the March 2017 JMR, the record does not show that the JSRRC, NPRC, or PIES responses included review of the flight logs, not does the record include the flight logs themselves. A remand in necessary to obtain the flight logs evidence. 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. The RO should obtain the flight logs for the 36th Installation Squadron (IS), 36th Fighter-Day Wing (FDW) stationed at Bitburg, Germany during January 1958 through March 1958. 

2. If the flight logs are not located, a written statement explaining the circumstances of the unavailability should be requested and added to the claims file. 

3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran and his representative should be issued a SSOC.  An appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations.

The Veteran 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 remands 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.A. §§ 5109B, 7112 (West 2014).




_________________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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).



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