Citation Nr: 1301581 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 11-01 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to service connection for a bilateral foot disability, claimed as bilateral trench foot numbness. 2. Entitlement to service connection for a bilateral shoulder disability. 3. Entitlement to service connection for a bilateral knee disability. 4. Entitlement to service connection for a left bicep disability. 5. Entitlement to service connection for a cervical spine disability. 6. Entitlement to service connection for a low back disability. 7. Entitlement to service connection for hemorrhoids. 8. Entitlement to service connection for sciatica. 9. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from July 1999 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The RO in Anchorage, Alaska currently has original jurisdiction over the Veteran's claims. The Veteran testified at a Travel Board hearing which was chaired by the undersigned Veterans Law Judge at the Anchorage RO in June 2011. A transcript of the hearing has been associated with the Veteran's VA claims folder. In the above-mentioned September 2009 rating decision, the RO, in part, denied the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran's notice of disagreement indicated that he wished to appeal these issues and the RO issued a statement of the case (SOC) in December 2010 which addressed these issues. The January 2011 substantive appeal, however, did not list hearing loss or tinnitus among the issues being appealed. See 38 C.F.R. § 20.202 (2012) (if a SOC lists several issues, the substantive appeal must either indicate that the appeal is being perfected as to all issues or must specifically identify the issues being appealed). During the June 2011 hearing it was noted that the Veteran wished to appeal the issue of service connection for tinnitus and the Board accepted jurisdiction over this issue. See the hearing transcript, page 1. It was also noted that the Veteran did not intend to appeal the issue of service connection for hearing loss. Id. Accordingly, the issue of entitlement to service connection for hearing loss was not perfected and that issue is not before the Board. See Archbold v. Brown, 9 Vet.App. 124, 130 (1996) (pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND In his September 2010 notice of disagreement and during the June 2011 hearing, the Veteran stated that he developed a shoulder disability, a cervical spine disability, a low back disability, and sciatica as a result of an in-service car accident. He further asserted that he has continued to experience these disabilities since his separation from service. See the hearing transcript, page 6. Upon review, the Veteran's service treatment records document that he was involved in a motor vehicle accident and placed on a temporary physical profile in February 2003. While the Veteran testified that he received ongoing treatment during service for the residuals of his motor vehicle accident, the service treatment records contained in his claims file do not document any such treatment. In this capacity, the Board notes that the Veteran has testified that portions of his service treatment records have been lost. See the hearing transcript, page 7. While the claims file contains the Veteran's entrance examination and multiple in-service treatment records, a copy of his separation examination is not of record. As a result, the RO/AMC should conduct an additional search for any service treatment record that may not have been associated with the claims file. As the Veteran has stated that he has a complete copy of his medical records at home, the RO/AMC should also contact the Veteran and request he submit any service treatment records in his possession. Based on the evidentiary posture a medical examination is necessary. See McLendon v. Nicholson, 20 Vet.App. 79 (2006); Charles v. Principi, 16 Vet. App. 370 (2002). See also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim.) With respect to the Veteran's claim of entitlement to service connection for a bilateral foot disability, during the July 2011 hearing, the Veteran testified that he experiences numbness in both of his feet as a residual of trench foot that he developed while on active duty. See the hearing transcript, page 3. While the Veteran is competent to report experiencing numbness in his feet, his service treatment records are negative for any treatment or complaints of trench foot during service. The Board notes, however, that the Veteran was treated for complaints of left foot pain in April 2000 and diagnosed with bilateral plantar fascia. See an April 2000 treatment record. Under these circumstances, the Veteran should be afforded a VA examination to determine the nature of his claimed bilateral foot disability and whether any identified disability had its clinical onset in service or is otherwise related to active duty. See McLendon, supra; Charles, supra; see also 38 C.F.R. § 3.159(c)(4) (2012). With respect to the Veteran's claim of service connection for a left bicep and bilateral knee disabilities, during the June 2011 hearing, the Veteran testified that he injured his left bicep during a parachute jump. Specifically, the Veteran stated that a static line "caught" his arm. See the hearing transcript, page 9. The Veteran has also stated that he injured his knees during parachute landings and while carrying his gear to and from the planes. While the Veteran's service treatment records do not document any complaints or treatment for a knee or left bicep disability, the Veteran's DD Form 214 documents that he has been awarded a Parachutist Badge. Under these circumstances, the Veteran should be afforded a VA examination to determine the nature of his claimed left bicep and bilateral knee disabilities and whether any identified disability had its clinical onset in service or is otherwise related to active duty. See McLendon, supra; Charles, supra; see also 38 C.F.R. § 3.159(c)(4) (2012). During the June 2011 hearing, the Veteran testified that he has been receiving ongoing treatment for the residuals of his in-service motor vehicle accident from Eagle River Chiropractor and the Heritage Family Clinic in Eagle River. See the hearing transcript, page 6. He also reported that he was receiving private medical treatment for his feet. Id. at 4. Upon review, the Veteran's private treatment records have not been associated with his claims file. On Remand, any outstanding treatment records should be obtained and associated with his claims folder. 38 U.S.C.A. § 5103A(c) (West 2002). Finally, the record reflects that the RO mailed a Veterans Claims Assistance Act (VCAA) notification letter to the Veteran's last known address in June 2009. A copy of the rating decision currently on appeal was also mailed to this address in September 2009. While the Veteran filed a timely notice of disagreement to this rating decision, a November 2010 report of contact indicates that the Veteran had moved in 2008 and mail sent to the Veteran's last known address had been returned to the RO. The claims folder does not indicate what mail had been returned as undeliverable, however, in his January 2011 substantive appeal the Veteran argued that he did not receive the June 2009 VCAA notification letter. In light of the Veteran's allegation that he had moved in 2008, and the November 2010 Report of General Information which indicates that mail sent to the Veteran had been returned, the RO/AMC should mail the Veteran a VCAA notification letter to his current address. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2012). Accordingly, the case is REMANDED for the following action: 1. The RO must assure that all notice and development required by VCAA has been accomplished, to include providing the Veteran with a VCAA notice letter which informs him of what the evidence must show to establish his service connection claims, and of his, and VA's respective duties for obtaining evidence. 2. The RO also should take appropriate steps to contact the Veteran and ask that he identify the names and addresses of all health care providers who have treated him for claimed disabilities. The Board is particularly interested in records of pertinent treatment that the Veteran may have received at Eagle River Chiropractors and the Heritage Family Clinic in Eagle River. After procuring authorization from the Veteran for release of all identified records, as appropriate, the RO should attempt to obtain such records. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran's VA claims folder. 3. The RO/AMC should take all indicated action to contact the National Personnel Records Center (NPRC) and/or any other possible repository, and verify that all of the Veteran's service treatment records have been obtained. If no records are available, that should be noted in the Veteran's VA claims folder. The AMC/RO should also contact the Veteran and request that he submit copies of any service treatment records in his possession. 4. Then, schedule the Veteran for a comprehensive VA examination to determine the nature and etiology of any current shoulder, cervical spine, low back, or sciatica disability. The examiner should review the claims file and opine as to whether it is at least as likely as not (50 percent probability or greater) that any identified shoulder, cervical spine, low back or sciatica disability had causal origins in service or is otherwise related to the Veteran's active duty service. In so doing, the examiner is reminded that the Veteran's contentions should be discussed, to include his statement of ongoing symptomatology. Rationales should be associated with all conclusions reached in the examination report. 5. Then, schedule the Veteran for a VA foot examination to determine the nature and etiology of any current foot disability. The examiner should review the claims file and opine as to whether it is at least as likely as not (50 percent probability or greater) that any identified foot disability had causal origins in service or is otherwise related to the Veteran's active duty service. In so doing, the examiner is reminded that the Veteran's contentions should be discussed. Rationales should be associated with all conclusions reached in the examination report. 6. Then, schedule the Veteran for a comprehensive VA examination to determine the nature and etiology of any knee or left bicep disability. The examiner should review the claims file and opine as to whether it is at least as likely as not (50 percent probability or greater) that any identified knee or left bicep disability had its causal origins in service or is otherwise related to the Veteran's active duty service. In so doing, the examiner is reminded that the Veteran's contentions should be discussed. Rationales should be associated with all conclusions reached in the examination report. 7. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review 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 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. 2012). _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2012).