Citation Nr: 0812802 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 03-18 457A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for left elbow internal derangement. 2. Entitlement to service connection for depression and anxiety. 3. Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from January 1964 to December 1966. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") on September 10, 2007, which vacated a March 2006 Board decision as to these issues on appeal and remanded the case for additional development. The issues initially arose from a May 2004 rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2005, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. In correspondence dated January 3, 2008, the veteran was provided notice that he had 90 days to submit additional evidence to the Board. On April 2, 2008, the veteran's attorney submitted a statement via facsimile noting that additional evidence would be sent through the United States Postal Service. As of this date no additional evidence has been received and the receipt of any subsequent evidence must be considered as not having been timely received for consideration by the Board. See 38 C.F.R. § 20.1304(a) (2007). 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 In a September 2007 decision, the Court found the prior Board determination had failed to provide adequate reasons and bases to support the decisions rendered as to the issues on appeal. In a joint motion for remand it was noted, in essence, that a February 2002 VA medical opinion relied upon had not provided an opinion as to whether a demonstrated decrease in left elbow function during service was due to the natural progression of a pre-existing disability. It was noted that service medical records included an enlistment examination in January 1964 demonstrating extension to 160 degrees and an October 1966 separation examination demonstrating extension to 150 degrees. The Court also found that VA efforts to assist the veteran were inadequate because there had been no attempt to obtain unit records to corroborate his assertion that an explosion during service may be related to his disabilities. It was noted that in a May 1999 application for VA benefits the veteran referred to an explosion in 1965 during service at Fort Bliss, Texas, that resulted in a severe left neck injury and that in correspondence dated in November 2004 he referred to explosion-related injuries in 1964 from anti-tank mines at Fort Leonard Wood, Missouri. Therefore, the case must be remanded for additional development. The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). A review of the record shows the veteran was notified of the VCAA duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in August 2003 and August 2005. The Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), held that the VCAA notice requirements applied to all elements of a claim. As the case is being remanded for additional development, the veteran should be provided adequate VCAA notice as to all elements of the claims remaining on appeal. The revised VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. See 38 C.F.R. § 3.159 (2007). For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile; however, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records. 38 C.F.R. § 3.159(c). A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1132 (West 2002); 38 C.F.R. § 3.304(b) (2007). VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (holding, in part, that 38 C.F.R. § 3.304(b) is inconsistent with 38 U.S.C. §§ 1111, 1132 to the extent that it states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under this rebuttal standard attaches. See Cotant v. Principi, 17 Vet. App. 116 (2003). A preexisting injury or disease will be considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2007). In cases involving aggravation by active service, the rating is to reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service, whether the particular condition was noted at the time of entrance into active service, or whether it is determined upon the evidence of record to have existed at that time. 38 C.F.R. § 3.322(a) (2007). The Court has also recognized that temporary flare-ups of a pre-existing disorder during service, without evidence of a worsening of the underlying condition, did not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 296-7 (1991). Accordingly, the case is REMANDED for the following action: 1. The veteran should be provided any additional VCAA notice required on his claims as result of the decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The veteran should be requested to provide additional information clarifying the approximate date and location of any explosion during active service to which he was exposed and the injuries incurred at that time. The veteran and his attorney should be notified that VA regulations require that he cooperate fully and upon request must provide enough information to identify and locate any existing records. 3. Upon receipt of information sufficient to identify and locate any existing records, appropriate action should be taken to obtain unit records. As many requests as are necessary to obtain any relevant records must be taken, unless further efforts would be futile. All attempts to procure records should be documented in the file. If the records identified by the veteran cannot be obtained, a notation to that effect should be inserted in the file. The veteran and his attorney are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 4. If, and only if, the evidence establishes that the veteran suffered any event, injury, or disease related to an explosion during active service he should be scheduled for appropriate VA psychiatric and audiological examinations. The physician and the audiologist performing the examinations should provide opinions as to whether there is at least a 50 percent probability or greater (at least as likely as not) that any present depression, anxiety, or hearing loss was incurred as a result of active service. All indicated tests and studies are to be performed, and a comprehensive social, educational and occupational history are to be obtained. Prior to each examination, the claims folder and a copy of this remand must be made available to the physician and audiologist for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The opinion should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 5. The veteran should be scheduled for a VA orthopedic examination for an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that any demonstrated disability or decrease in left elbow function during active service was incurred as a result of an aggravating injury or was due to the normal progression of the disease during active service. Prior to any examination, the claims folder must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report. The opinion should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 6. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 7. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed. All applicable laws and regulations should be considered. If any benefit sought remains denied, the veteran and his attorney should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ RENÉE M. PELLETIER 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).