Citation Nr: 0812051 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-09 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for bilateral leg disabilities. 2. Entitlement to service connection for a back condition. 3. Entitlement to service connection for left ear hearing loss. 4. Entitlement to service connection for migraine headaches. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The veteran served on active duty from November 1998 to November 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which, in pertinent part, denied entitlement to service connection for the above conditions. In July 2005, the veteran provided testimony at a hearing before a hearing officer at the Baltimore RO. A transcript of this hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The claims folder indicates that the veteran's service treatment records were lost during his participation in Operation Enduring Freedom in Afghanistan. The National Personnel Records Center (NPRC) was able to procure records from the Defense Personnel Records Image Retrieval System (DPRIRS), but they do not contain any findings referable to the claimed disabilities and contain essentially no medical records for the period after the veteran's examination for entrance into service. During his hearing in July 2005, the veteran testified that he received treatment during service for his claimed disabilities at Camp Pendleton Naval Hospital, Camp Forester Naval Center in Okinawa, Japan, 22 Area Branch Medical Station, and 29 Palms California Base. The hearing officer stated that the RO would contact these facilities and attempt to obtain records of the veteran's treatment. While the claims folder contains an October 2007 note that such development should be attempted, there is no indication that such requests for records were made. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The veteran's reports of a constinuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. In addition, the Board is aware that in situations where the veteran's service treatment records are unavailable, it has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Therefore, the veteran should be provided a VA examination to determine the nature and etiology of the veteran's claimed disabilities. In his initial claim for VA benefits the veteran reported that he had had knee disabilities since 1999. VA treatment records also show current treatment for knee complaints. An examination is needed to obtain an opinion as to whether the current knee disabilities were incurred in service. The veteran has also reported a back disability in service, and VA treatment records show current complaints referable to the low back. Given the missing service treatment records and the low threshold for getting an examination under the VCAA, an examination is needed to determine whether there is a current back disability related to service. Based on the foregoing, this case is REMANDED to the RO or the AMC in Washington, DC, for the following actions: 1. The AOJ should contact Camp Pendleton Naval Hospital, Camp Forester Naval Center in Okinawa, Japan, 22 Area Branch Medical Station, and 29 Palms California Base and request all available records of the veteran's treatment. 2. The veteran should be afforded a VA examination to ascertain the nature and etiology of any current knee or low back disability. The claims folder must be made available to and reviewed by the examiner. The examination report should reflect that the claims folder was reviewed. After physically examining the veteran, the examiner should proffer an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that any current knee or low back disability had its onset in service or is otherwise the result of a disease or injury in service. The examiner is advised that the veteran is competent to report injuries and symptoms in service, regardless of the contents of the service medical records, and that the veteran's reports must be considered. The rationale for any opinions should also be provided. 3. Then, the RO or the AMC should readjudicate the claims. If the benefits sought on appeal are not granted, the veteran and his representative should be furnished a supplemental statement of the case, before the case is returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ Mark D. Hindin 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) (2007).