Citation Nr: 1234949 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 08-35 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for pharyngitis with recurrent strep throat. 3. Entitlement to service connection for sinusitis, previously claimed as allergic rhinitis. 4. Entitlement to service connection for a left long finger disability. 5. Entitlement to service connection for a thoracolumbar spine disability. 6. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from May 2000 to June 2004. This case comes before the Board of Veterans Appeals (Board) on appeal of a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In a rating decision of April 2011, the RO granted service connection for tinnitus. Accordingly, that issue, which was formerly on appeal, is no longer before the Board. This case was previously before the Board in February 2012, at which time it was remanded in order that the Veteran might be afforded a hearing before a travelling member of the Board. That hearing having been accomplished, the case is once more before the Board for appellate review. Finally, for reasons which will become apparent, this appeal is once again being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND A review of the record in this case raises some question as to the exact nature and etiology of certain of the disabilities at issue. In that regard, while following a VA medical examination in May 2011, the examiner was of the opinion that the Veteran's pharyngitis with recurrent strep throat had "resolved," it was additionally noted at that time that the Veteran's pharyngitis (with recurrent strep throat) was more likely than not related to a premilitary tonsillectomy at the age of six. While according to the examiner, the Veteran's maxillary sinusitis was likewise related to that preservice tonsillectomy, no opinion was offered as to whether the Veteran's pharyngitis (to the extent it existed) and maxillary sinusitis were, in fact, aggravated during the Veteran's period of active military service. Such an opinion is necessary prior to a final adjudication of the Veteran's claims for service connection. Turning to the issues of service connection for disabilities of the thoracolumbar spine and right knee, the Board notes that, at the time of private chiropractic treatment in November 2006, the Veteran was described as suffering from osteophytic changes (i.e., osteoarthritis) in the area from the second to the fifth lumbar vertebrae. However, at the time of a subsequent VA medical examination in November 2010, radiographic studies of the Veteran's lumbar spine showed a normal alignment and vertebral body height, with preserved disc spaces, and no evidence of osteophytic changes. Significantly, while at the time of the aforementioned VA medical examination in May 2011, the examiner indicated that there was "no medical record" which indicated that the Veteran experienced knee pain during his military service, an inservice chronological record of medical care dated in early May 2004 contains a notation regarding a history of periodic right knee pain over the course of the previous five to six months. Finally, the Board observes that, at the time of the aforementioned hearing before the undersigned Veterans Law Judge in July 2012, the Veteran testified that he continued to receive treatment for his pharyngitis and sinusitis from a private medical facility, specifically, Prompt Care, located in East Bremerton, Washington, records of which were not currently a part of his claims file. See Transcript, pp. 7-8. Moreover, later in that same hearing, the Veteran once again testified that he received all of his care from the aforementioned private medical facility, rather than the local VA medical center. See Transcript, p. 23. Significantly, records of that treatment must be obtained prior to a final adjudication of the Veteran's claims for service connection. Accordingly, in light of the aforementioned, the case is once again REMANDED to the RO/AMC for the following actions: 1. The RO/AMC should contact the Veteran, with a request that he provide the full name and address for the aforementioned private medical facility, specifically, Prompt Care located in East Bremerton, Washington. Following receipt of that information, the RO/AMC should contact that private medical facility, with a request that they provide copies of any and all records of treatment of the Veteran at their facility. The Veteran should be requested to sign the necessary authorization for release of such private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 2. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to May 2011, the date of the most recent VA examination of record, should then be obtained and incorporated in the claims folder. Once again, the Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 3. The Veteran should then be afforded additional VA otolaryngologic and orthopedic examinations in order to more accurately determine the exact nature and etiology of his claimed pharyngitis/sinusitis, as well as his disabilities of the thoracolumbar spine and right knee. The Veteran is to be notified that it is his responsibility to report for the examinations, and to cooperate in the development of his claims. The Veteran is further to be advised that the consequences for failure to report for a VA examination without good cause may include denial of his claims. 38 C.F.R. §§ 3.158, 3.655 (2011). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the otolaryngologic examination, the examiner should specifically comment as to whether the Veteran currently suffers from chronic, clinically-identifiable sinusitis, pharyngitis, or allergic rhinitis. Should it be determined that the Veteran does, in fact, suffer from such chronic pathology, an additional opinion is requested as to whether the pathology in question had its origin prior to the Veteran's entry upon active military service, and, if so, whether that pathology at least as likely as not underwent a clinically-identifiable permanent increase in severity beyond natural progress during the Veteran's period of active military service. Should it be determined that the Veteran does, in fact, suffer from sinusitis, pharyngitis, or allergic rhinitis, but that such pathology did not have its origin prior to his period of active military service, an additional opinion is requested as to whether any identified chronic pathology at least as likely as not had its origin during, or is in some way the result of, the Veteran's period of active military service. Following completion of the orthopedic examination, the examiner should specifically comment as to whether the Veteran currently suffers from chronic, clinically-identifiable pathology of the thoracolumbar spine and/or right knee, and, if so, whether such pathology at least as likely as not had its origin during the Veteran's period of active military service. As regards the Veteran's right knee, should it be determined that the Veteran currently suffers from chronic residuals of Osgood-Schlatter's disease which preexisted his period of active military service, an additional opinion is requested as to whether such disability underwent a clinically-identifiable, permanent increase in severity beyond natural progress during the Veteran's period of active military service. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder and a separate copy of this REMAND must be made available to and reviewed by the examiners prior to completion of the examinations. Moreover, the examiners must specify in their reports that the claims file and Virtual VA records have been reviewed. 4. The RO/AMC should then review the examination reports to ensure that they are in complete compliance with the directives of this REMAND, and that the examiners have documented their consideration of all records contained in Virtual VA. If the reports are deficient in any manner, the RO/AMC must implement corrective procedures. 5. The RO/AMC should then readjudicate the Veteran's claims for service connection for bilateral hearing loss, pharyngitis with recurrent strep throat, sinusitis (formerly claimed as allergic rhinitis), a left long finger disability, thoracolumbar spine disability, and right knee disability. Should the benefits sought on appeal remain 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 action taken on the claims for benefits since the issuance of the most recent SSOC in September 2011. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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. 2010). _________________________________________________ WAYNE M. BRAUER 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) (2010).