Citation Nr: 1306507 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 09-41 980A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for a skin disorder due to a bomb blast (claimed as burns). 3. Entitlement to service connection for an eye disorder due to a bomb blast. 4. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran had active service from November 1977 to March 1978 and January 1980 to October 1981. He also had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the Army Reserve. This matter initially comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In July 2012, the Veteran testified at Board videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of the hearing is of record. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with this appeal. The electronic file contains no additional relevant treatment records pertaining to the issues on appeal. During the July 2012 Board hearing, the Veteran raised additional issues of entitlement to service connection for posttraumatic stress disorder, a shoulder disability, and residuals of a concussion/contusion from a bomb blast. Although these issues have been raised by the record, they have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 Board's review of the claims file reveals that further action in this appeal is warranted. A June 2008 VA progress note indicates the Veteran reported that he had applied for Supplemental Security Income (SSI) benefits from the Social Security Administration (SSA). Although he did not specify that the claim for benefits was based on disability, the Board notes that he is under the age of 65. Therefore, it is reasonable to assume that his SSA application was based on disability. Pursuant to the duty to assist, these records should be requested. See 38 C.F.R. § 3.159(c)(2) (2012); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA has an obligation to secure Social Security Administration records if there is a reasonable possibility that the records would help to substantiate the Veteran's claim). Regarding the Veteran's claim for service connection for a left ankle disability, the Board finds that a VA examination and opinion is necessary to fairly adjudicate the claim. The Veteran asserts that he injured his ankle during physical training at Fort Lewis in 1980 or 1981. During the Board hearing, he testified that he was treated at Madigan Army Medical Center, was told that he had a hairline crack, and wore a boot for two weeks. The RO attempted to obtain the Veteran's service treatment records (STRs) for this time period, including inpatient treatment records at Madigan Army Medical Center, but received negative responses. Due to the missing STRs, the Board recognizes its heightened obligation to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Moreover, the Veteran is competent to state what he has personally experienced or observed, including the left ankle injury and the treatment is received. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). He is also competent to report that he was told by doctors that he had a hairline crack in his left foot or ankle. Id. A February 2010 VA podiatry progress note indicates the Veteran had degenerative arthritis of the midfoot and soft tissue swelling and edema of the ankle. The assessment was tibialis posterior and anterior tendonitis and peroneal tendonitis. Given the missing STRs, the Veteran's assertions, and current findings, the Board finds that a VA examination and medical opinion is needed to fairly resolve the claim for service connection. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the Veteran's claim for an increased rating for bilateral hearing loss, the evidence of record reflects that the Veteran was last afforded a VA examination over two years ago, in August 2010. During the Board hearing, the Veteran testified that his hearing loss was getting worse. Therefore, the Board finds that contemporaneous medical findings are needed to evaluate the Veteran's bilateral hearing loss. See 38 C.F.R. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination); and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous"). Finally, the record suggests that the Veteran receives regular VA treatment for his claimed disabilities; however, many of the records received were submitted directly from the appellant. It is unclear whether the claims file includes all of his relevant VA treatment records and none have been associated with his electronic claims folder in the Virtual VA system. VA is obligated to attempt to obtain and consider these records in adjudicating this appeal. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain the Social Security Administration records pertinent to the Veteran's claim for Social Security disability benefits including a copy of any decision and copies of the medical records relied upon concerning that claim. If records are not obtained, the claims folder should contain documentation of the attempts made to obtain the records. 2. Contact the appropriate VA Medical Center and obtain and associate with the paper or virtual claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any left ankle or foot disability. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. The examiner must identify all disabilities of the left ankle and foot. Then, with regard to each diagnosed condition, the examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record whether it is at least as likely as not (i.e., a 50 percent probability or higher) that the condition is related to his active duty service. In rendering this opinion, the examiner is asked to consider and address the Veteran's lay statements and reported medical history. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of his bilateral hearing loss. The entire claims file (i.e., both the paper claims file and any medical records contained in Virtual VA) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. Specifically, the results of the audiological evaluation must state, in numbers, the findings of puretone decibel loss at 500, 1000, 2000, 3000 and 4000 Hertz, provide the puretone threshold average, and must also state the results of the word recognition test, in percentages, using the Maryland CNC test. The examiner, in addition to dictating objective test results, must fully describe the functional effects caused by a hearing disability in the report. 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must 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). The claims must be afforded expeditious treatment. The law requires that all claims 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. 2012). _________________________________________________ K. MILLIKAN Acting 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) (2012).