Citation Nr: 0517695 Decision Date: 06/29/05 Archive Date: 07/07/05 DOCKET NO. 95-28 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a right foot injury. 2. Entitlement to an initial compensable disability rating for bilateral hearing loss. 3. Entitlement to an initial compensable disability rating for hemorrhoids. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. H. Eskenazi, Counsel INTRODUCTION The veteran served on active military duty from July 1961 to August 1964, and from February 1965 to February 1968. Prior to serving on active duty, the veteran served in the Ohio Army National Guard. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied the benefits sought on appeal. In June 1997, jurisdiction of this appeal was transferred to the VARO in Los Angeles, per the veteran's request. In December 2003, the Board remanded this appeal to schedule the veteran for a hearing before the Board, as he had requested. That hearing was subsequently held before the undersigned Veterans Law Judge in March 2004, and a copy of the hearing transcript is in the claims file. Notably, the December 2003 Board remand also referred back to the RO a claim for an increased rating for the veteran's service- connected tinnitus, which is not currently in appellate status. For reasons discussed below, this appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND This appeal arises out of the veteran's claim that he currently has a right foot disorder that is due to an injury he sustained while on basic training. He also maintains that his service-connected bilateral hearing loss and hemorrhoids are more disabling than that represented by the current noncompensable ratings. Upon review of the claims file, the Board finds that additional development is necessary before this appeal is ready for appellate disposition. The Board regrets the additional delay that will be caused by this remand, but further development of the evidence in this appeal is essential to ensuring that VA has satisfied its duty to assist the veteran substantiate his claims. On the veteran's original application for benefits, received in August 1994, he claimed that he sustained a right foot injury in 1959, while serving in the Ohio National Guard. In his substantive appeal, VA Form 9, received in August 1995, he maintained that he broke his foot during basic training, while a reservist on active duty. In other statements and hearing testimony of record, the veteran has elaborated on the circumstances of his right foot injury. Throughout this appeal, the veteran's contentions regarding his right foot injury have remained consistent. However, the Board finds that inadequate efforts have been made to obtain records from the veteran's National Guard service. The record reflects two attempts to obtain service medical records for the veteran's period of active duty, and those records are in the claims file. However, the file contains no documentation of specific efforts to obtain the veteran's service medical records from his period of service in the National Guard, despite repeated requests from the veteran for assistance in obtaining such records. According to a Request for Statement of Service, dated in June 1965, the veteran served in the Ohio Army National Guard service from June 10, 1959, to August 1, 1960, including a period of active duty training from June 27, 1959, to December 18, 1959. On the veteran's original claim for service connection, he reported service in the Ohio National Guard from 1959 to 1961. At the November 1996 RO hearing, the veteran testified that he served in the Ohio National Guard in Fort Knox, Kentucky, for two months. At the March 2004 hearing before the undersigned, the veteran testified that he injured his right foot in 1959, during basic training. He stated that he was treated with a cast at the Army hospital in Fort Knox. As described above, the record contains documentation that the veteran was on active duty for training in 1959, and it is during that time that the veteran maintains that he injured his right foot. As such, attempts must be made to secure any service medical records from the veteran's National Guard service. These attempts must comply with the instructions set forth in the Veterans Benefits Administration (VBA) Adjudication Procedure Manual, M21-1, Part III, Chapter 4, entitled "Requests for Service Records." In order to comply with VA's duty to assist, efforts should be made to locate the veteran's National Guard records until it is reasonably certain that such records do not exist, or that further efforts to obtain such records would be futile. 38 U.S.C.A. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2). These efforts should include a specific request to the National Personnel Records Center (NPRC) for the veteran's National Guard records for his service in 1959 and 1960. If the NPRC responds in the negative, a request should be made to the Ohio State Adjutants General, as provided in M21-1, Part III, ch. 4, para 4.01(c)(3) and Addendum F. Finally, a separate request should be made for any treatment records for the veteran at the Army Hospital in Fort Knox, Kentucky, in 1959. All efforts to locate the veteran's National Guard records should be clearly documented in the claims file, and if it is determined that the records are unavailable, this should also be clearly documented in the claims file. If further attempts to locate the veteran's service medical records from his National Guard Service are negative, this matter should be referred to a VA Military Records Specialist (or designated alternate), to investigate and to request records "outside normal channels" if necessary. See VBA Adjudication Procedure Manual, M21-1, Part III, ch. 4, para. 4.28. If it is determined that the service medical records are unavailable, and that further efforts to obtain the records would be futile, the procedures in VBA Adjudication Procedure Manual, M21-1, Part III, ch. 4, para. 4.29, should be followed, and a memorandum should be drafted that is a formal finding on the unavailability of service medical records for the veteran's National Guard service. See VBA Adjudication Procedure Manual, M21-1, Part III, ch. 4, para. 4.29, Addendum O. The required notice of any such finding should be provided to the veteran in accordance with established procedures. If and only if records are obtained that document that the veteran sustained a right foot injury during a period of active duty for training, the veteran should be scheduled for a VA examination to ascertain the current nature of any right foot disorder. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examiner should be specifically asked to provide a medical opinion as to whether it is at least as likely as not that any current right foot disorder is causally related to an injury that occurred during the veteran's National Guard service. In addition to the foregoing, further evidentiary development is needed with regard to the veteran's claims pertaining to hearing loss and hemorrhoids. For each of those claims, the veteran has identified additional treatment records, but there have been inadequate efforts (if any) to obtain copies of such records. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(1). In November 2002, the veteran submitted a statement indicating that he was receiving treatment for his hearing disabilities. He attached to that statement two authorizations to release information from two separate medical facilities (Dr. S.M. and Hearing Associates). In June 2003, the RO sent the veteran a letter informing him that the authorization forms he filled out were no longer acceptable, due to a change in the law, and he was requested to fill out new forms. In October 2003, the veteran sent in new signed consent forms, although he did not include the doctor's names and addresses on those new forms. Despite this fact, it appears clear from the record that the veteran sent in those forms as response to the RO's June 2003 request. Moreover, at the March 2004 hearing before the undersigned, the veteran testified that he had received treatment for his hearing loss from Dr. S.M. within six months prior to the hearing. As such, VA has been put on notice of the possibility of additional relevant treatment records pertaining to the veteran's hearing, but it does not appear that VA has satisfied the duty to assist the veteran obtain copies of those records. Thus, further efforts must be made to assist the veteran in this regard. Finally, it appears that four years have passed since the veteran had a VA examination for his hearing loss. At the March 2004 hearing before the undersigned, the veteran testified that his left ear hearing had worsened. As such, the Board finds that after obtaining the outstanding private treatment records referenced above, the veteran should be scheduled for a VA examination to ascertain the current nature and severity of his hearing loss disability. Finally, the Board notes that in August 2003, the veteran submitted a statement to the RO requesting that they contact Dr. K. for verification of the re-emergence and treatment of his post-surgical hemorrhoid condition. He provided the address for Dr. K., but it does not appear that any efforts were made to assist the veteran in obtaining those records. As such, efforts must be made to assist the veteran in obtaining copies of those treatment records. In light of the foregoing, this appeal is REMANDED to the RO via the Appeals AMC for the following actions: 1. Send a specific request for the veteran's service medical records from his service in the Ohio Army National Guard, from 1959 to 1961, to the following locations: (1) National Personnel Records Center, and; (2) Ohio State Adjutant General, 2825 Dublin Granville Road, Columbus, Ohio, 43235- 2715. See VBA Adjudication Procedure Manual M21-1, Part III, ch. 4, para. 4.01(c)(3) and Addendum F. Please request that a negative response be provided, if no service medical records from the veteran's National Guard service are found at either facility. If no response is received, follow up the request with another letter. Fully and completely document all attempts to receive a response from these facilities in the claims file. 2. Send a request to the Army Hospital in Fort Knox, Kentucky, for copies of any treatment for the veteran in 1959, pertaining to a right foot injury while he was serving in the Ohio Army National Guard. 3. If further attempts to locate the veteran's service medical records from his National Guard Service are negative, refer this matter to a VA Military Records Specialist (or designated alternate), to investigate and to request records "outside normal channels" if necessary. See VBA Adjudication Procedure Manual, M21-1, Part III, ch. 4, para. 4.28. The Military Records Specialist is specifically requested to review this remand, which includes a detailed outline of the available information pertaining to the veteran's National Guard service, and to carefully review the veteran's claims file, and to conduct whatever follow-up is deemed necessary, as outlined in VBA Adjudication Procedure Manual, M21-1, Part III, ch. 4, para. 4.28. If it is determined that the service medical records are unavailable, and that further efforts to obtain the records would be futile, the procedures in VBA Adjudication Procedure Manual, M21-1, Part III, ch. 4, para. 4.29, should be followed, and a memorandum should be drafted that is a formal finding on the unavailability of service medical records for the veteran's National Guard service. See VBA Adjudication Procedure Manual, M21-1, Part III, ch. 4, para. 4.29, Addendum O. The required notice of any such finding should be provided to the veteran in accordance with established procedures. 4. If and only if records are obtained that document the veteran's claimed right foot injury during National Guard service in or around 1959, as the veteran contends, schedule the veteran for a VA examination to ascertain the current nature and severity of any current right foot disorder. The doctor should be specifically requested to provide an opinion as to whether it is at least as likely as not (50 percent or greater) that any current right foot disorder is causally related to an injury that the veteran sustained to his right foot during a period of active duty for training in the Ohio National Guard. This claims file, or a copy of all relevant medical records, should be provided to the examiner for review in conjunction with the examination. 5. Assist the veteran in obtaining copies of relevant treatment records from the two medical providers he identified in his November 2002 statement as treating him for hearing-related conditions: Dr. S.M. and Hearing Associates. Please document all efforts to obtain copies of such records, including any negative responses. 6. Assist the veteran in obtaining copies of relevant treatment records for his hemorrhoids from Dr. K., whose address the veteran lists in his August 2003 statement. Please document all efforts to obtain copies of such records, including any negative responses. 7. After obtaining the private treatment records for the veteran's hearing identified in paragraph 5 above, or after determining that it is reasonably certain that such records do not exist or that further efforts to obtain such treatment records would be futile, please schedule the veteran for a VA examination to ascertain the current nature and severity of his current hearing loss disability. The examiner is requested to conduct testing to determine the veteran's bilateral auditory thresholds in frequencies of 1000, 2000, 3000, and 4000 Hertz, and the veteran's speech recognition scores, using the Maryland CNC Test, as set forth in 38 C.F.R. § 3.385. 8. Following completion of the above development, the veteran's claims for service connection and increased ratings, which are the subject of this remand, should be readjudicated. If any benefit sought on appeal remains denied, the veteran and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. The veteran and his representative should be offered an appropriate opportunity to respond. 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 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 Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ STEVEN L. KELLER 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) (2004).