Citation Nr: 0814465 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 03-33 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for depression. 2. Entitlement to service connection for a chronic disability manifested by chest pain. 3. Entitlement to service connection for right ear hearing loss. 4. Entitlement to service connection for a right ankle and foot disability, claimed as right ankle swelling and foot pain. 5. Entitlement to service connection for left thumb tendonitis. 6. Entitlement to service connection for a back disorder. 7. Entitlement to service connection for drug and alcohol abuse. 8. Entitlement to an initial compensable rating for service connected left ear hearing loss. ATTORNEY FOR THE BOARD B. Morton, Associate Counsel INTRODUCTION The veteran served on active duty from March 1980 to March 1983. This matter is before the Board of Veterans' Appeals (Board) from July 2002 and September 2003 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The veteran requested a Board hearing on this matter, as reflected in a May 2007 VA Form 9. On appeal in December 2007 the Board remanded the issues instantly on appeal, directing the Appeals Management Center (AMC)/RO to schedule the veteran for a Travel Board hearing. The Board finds that it is unclear whether the AMC/RO complied with the December 2007 Remand directive, and therefore the Board may not proceed with its review of the appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). In addition, the Board determines that additional development of the record must occur. Accordingly, the appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND The Board determines that further development of the record is warranted. 38 C.F.R. § 19.9 (2007). In particular, with respect to the veteran's claims for service connection a right ankle and foot disability, left thumb tendonitis, a back disorder and a disability manifested by chest pain, the Board notes that the veteran underwent a VA examination in August 2003. While the clinician apparently reviewed the veteran's claims file, the veteran has raised questions about the adequacy and accuracy of this examination, as reflected in his April 2006 correspondence. Specifically, the veteran stated that the 2003 VA clinician erroneously characterized the duration of his symptoms of back pain as existing for a period of less than one year, of right ankle swelling and pain for only two years, and of left thumb tendonitis for about one year. The veteran has stated that he has experienced symptoms of these disorders for much longer durations, and his wife's March 2002 statement offers corroboration for this assertion. In addition, the August 2003 VA clinician appears to have based his unfavorable opinion that these disorders likely were unrelated to events or injuries in service on his impression that the veteran had only experienced said symptoms for a short period of time. See August 2003 VA Medical Examination Report ("symptoms [of back pain] for less than a year . . . . This would not likely be related to any lower back strains evaluated while in the military service"; "[s]ymptoms [of right ankle pain] only for about the last two years . . . unrelated to any specific injury either now or in the military service" [c]omplaints [of left thumb pain] of about one year . . . . This would not be attributable to any service injury"; chest pain "not likely related to any military injury"). Accordingly, the Board determines that the AMC/RO must provide fresh VA examinations to ascertain the current nature of these claimed disabilities and to acquire new medical opinions as to the likely etiology of said disorders. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007); Stegall, supra; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In addition, as noted in the Board's December 2007 Remand Order, a review of the claims file revealed that the veteran had requested a Travel Board hearing in conjunction with his claims instantly on appeal. Specifically, in May 2007, he submitted a VA Form 9 to the Board indicating that he wanted a hearing at the RO before a Member of the Board (i.e., Travel Board hearing). In its December 2007 Remand Order, the Board determined that, given this expressed intent of the veteran, it needed to return the case to the RO to arrange for said hearing. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. §§ 19.75, 19.76, 20.703, 20.704 (2007). In particular, the Board directed the RO to "schedule the veteran for a Travel Board hearing in conjunction with his pending appeal involving his claims for entitlement to service connection for depression, a chronic disability manifested by chest pain, right ear hearing loss, a right ankle and foot disability, claimed as right ankle swelling and foot pain, left thumb tendonitis, a back disability, and drug and alcohol abuse, and his claim for an initial compensable rating for left ear hearing loss. After the hearing is conducted, the case should be returned to the Board, in accordance with appellate procedures." See December 2007 Board Decision at 8-9. Thereafter, by letter dated May 7, 2008, the RO informed the veteran that "[w]e have completed the steps directed by the Board of Veterans' Appeals when it remanded you appeal to us and we are returning your VA records to the Board in Washington, D.C. The Board will notify you when it has received your records." This letter also stated that "[i]f you want to send the Board additional evidence concerning your appeal, submit a new request to appear personally before the Board to present testimony, or appoint a representative or change your representative, you must explain to the Board in writing why you could not send your request or new evidence to the Board earlier. The Board will then determine whether to grant your request or accept your new evidence." This letter did not attempt to schedule a Travel Board hearing, as directed by the Board in its December 2007 Remand Order, nor did this letter provide proper notification of a hearing, to include "its time and place, and of the fact that the Government may not assume any expense incurred by the appellant, the representative or witnesses attending the hearing," as required by 38 C.F.R. § 20.704(b). Although the Board notes that the VA Form 8, Certification of Appeal, dated March 6, 2008, contains a hand-written notation by an RO certifying official that the veteran withdrew his hearing request by letter dated December 19, 2007, the Board could locate no such letter in the record, and the veteran has not submitted any other correspondences since that time that the Board could construe as an indication of his intent to withdraw his request for a Board hearing. See 38 C.F.R. § 20.704(e). Accordingly, and pursuant to Stegall, supra, and 38 C.F.R. § 20.704, and given the fact that the case must be remanded for another examination and opinions as noted above, the RO must clarify whether the veteran wishes to partake in a Travel Board hearing, and if so, to afford him such a hearing. Therefore, this case is remanded for the following action: 1. The RO must contact the veteran at his last known address of record and clarify whether he wishes to partake in a Travel Board hearing. If the veteran answers in the affirmative, the AMC/RO must then schedule the veteran for a Travel Board hearing in connection with his appeal. After the hearing is conducted, the case should be returned to the Board, in accordance with appellate procedures. 2. If it is determined that the veteran has withdrawn his Travel Board hearing request, the AMC/RO must review the record and ensure compliance with all notice and assistance requirements set forth in the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.159 (2007). Notice consistent with 38 U.S.C.A § 5103(a) and 38 C.F.R. § 3.159(b)(1) with respect to the claims must: (a) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim for the benefit sought; (b) inform the claimant about the information and evidence that VA will seek to provide; (c) inform the claimant about the information and evidence the claimant is expected to provide; and (d) request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The AMC/RO should also provide the appellant with VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish ratings and effective dates for the benefits sough as outlined by the Court of Appeals for Veterans Claims in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006). 3. The AMC/RO should make attempts to acquire any outstanding VA medical records not yet associated with the claims file, to include any recent VA medical records from the Colorado Springs, Colorado VA Medical Center. 4. The veteran must be afforded a VA orthopedic examination for the purpose of determining the current nature and likely etiology of any disorders of the back, right foot or ankle, left thumb tendonitis, and chest pain. The examiner should review relevant portions of the claims file and indicate as such in the examination report. Following a review of the relevant medical evidence in the claims file, to include the veteran's service medical records, obtaining a history from the veteran, the physical examination and any tests that are deemed necessary, the clinician is requested to answer the following questions: (a) Is it at least as likely as not (50 percent or greater probability) that the veteran's current back disorder is causally related to his active service or any incident thereof, to include documented complaints of back pain during service in May 1981 and August 1981? (b) Is it at least as likely as not (50 percent or greater probability) that the veteran's current disorder manifested by chest pains is causally related to his active service or any incident thereof, to include documented complaints of chest pain during service in March 1981 and October 1981? (c) Is it at least as likely as not (50 percent or greater probability) that the veteran's current right ankle or right foot disorder, manifested by swelling and pain, is causally related to his active service or any incident thereof, to include a documented right ankle injury during service in September 1981 and February 1982? (d) Is it at least as likely as not (50 percent or greater probability) that the veteran's current left thumb tendonitis is causally related to his active service or any incident thereof? The clinician is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. The examiner is also requested to provide a rationale for any opinion expressed. The clinician is advised that if a conclusion cannot be reached without resort to speculation, s/he should so indicate in the examination report. 5. Then, after completion of any other notice or development indicated by the state of the record, with consideration of all evidence added to the record subsequent to the last SSOC, the AMC/RO must readjudicate the veteran's claims. If the claims remain denied, the AMC/RO should issue an appropriate SSOC and provide an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The veteran has the right to submit additional evidence and argument on the 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 2002 & Supp. 2007). ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, 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).