Citation Nr: 1311666 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 09-09 700 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for coronary artery disease with angina, status post coronary artery bypass graft (previously denied as a heart condition and rheumatic heart disease). 2. Entitlement to service connection for peptic ulcer disease. 3. Entitlement to service connection for arthritis of the right foot. 4. Entitlement to service connection for arthritis of the left foot. 5. Entitlement to service connection for arthritis of the right hand. 6. Entitlement to service connection for arthritis of the left hand. 7. Entitlement to service connection for residuals of a perforated left ear drum. 8. Entitlement to service connection for bilateral hearing loss. 9. Entitlement to service connection for tinnitus. 10. Entitlement to service connection for dizzy spells. 11. Entitlement to service connection for arthritis of the right ankle. 12. Entitlement to service connection for arthritis of the right elbow. WITNESSES AT HEARING ON APPEAL The Veteran, J.D.T., A.T., D.B., and R.S. ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2012). The Veteran served on active duty from October 1953 to October 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A Travel Board hearing was held in December 2012 before the undersigned Veterans Law Judge (VLJ), the transcript of which is on file. 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. REMAND There appear to be records of VA outpatient treatment which are not in the claims folder. In particular, it appears that there may be treatment records at the Salisbury VA Medical Center (VAMC) and/or the Winston-Salem Community Based Outpatient Clinic (CBOC). The RO previously requested records from the Salisbury VAMC but this effort was not successful and the RO's request was only for those records dated from 1976. There are no recent VA treatment records on file, and the law requires that they must be obtained before the appeal is decided. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is deemed to have constructive knowledge of all VA records and such records are considered evidence of record at the time a decision is made). The Veteran must also undergo a VA Compensation and Pension examination in support of his claim of service connection for arthritis in the areas of several upper and lower extremities. Private treatment records from July 1957, within two years of service discharge, show complaints of pain and swelling of the feet and ankles, continuing to the right knee joint and left hip. Generalized joint pain was noted on re-evaluation in March 1966. A May 1973 VA examination revealed extensive complaints of joint pain. These treatment notations were made in the context of determining whether the Veteran has rheumatoid arthritis, a disorder for which service connection already has been denied pursuant to a final 1973 RO rating decision. See 38 C.F.R. § 3.159(c)(4)(C)(iii) (VA's duty to provide medical examination applies to a claim to reopen a finally adjudicated claim only if new and material evidence is first presented or secured). However, to afford every consideration to the Veteran in this case, a comprehensive examination must be ordered on whether his present osteoarthritis (or substantially similar condition) of the hands, feet, etc. is etiologically related to military service. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran may submit any information or further evidence indicating that he has the disorders in question and if so, whether they were caused in or as a result of his military service. This information would include, but is not limited to medical records, prescription orders, medical invoices, statements from doctors; and information from those who are not medically trained but who are capable of reporting factual occurrences such as service colleagues, family members and friends, community acquaintances, etc. The Veteran is advised that as a general matter, in order for service connection to be granted, the evidence must show that (1) he has the disorder for which he seeks service connection; (2) that there was some incident in service which may have caused the disorder or whether, in the case of arthritis and hearing loss, the disorders were present within one year of his discharge from service, and; (3) medical or in some cases factual evidence showing that the disorders were caused by service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC must request from the Salisbury VA Medical Center (VAMC) and the Winston-Salem Community Based Outpatient Clinic (CBOC) (both located in North Carolina) all available treatment records for the Veteran. Then associate all paper records obtained with the claims file, or in the alternative associate an electronic copy of these records with the Veteran's "Virtual VA" claims folder. -THE RO/AMC MUST ASCERTAIN IF THE VETERAN IS RECEIVING BENEFITS FROM THE SOCIAL SECURITY ADMINISTRATION FOR ANY OF THE DISABILITIES AT ISSUE. IF SO, OBTAIN THE RECORDS ASSOCIATED WITH THE SOCIAL SECURITY ADMINISTRATION AWARD. 2. The RO/AMC must request from Veteran complete information regarding any instances of VA and/or private treatment not already of record. Provide the Veteran with medical authorizations (VA Form 21-4142) to identify any pertinent private treatment, and then follow up based on the information obtained. 3. The RO/AMC must then schedule the Veteran for a VA orthopedic examination with regard to a claimed arthritis of the feet, hands, right ankle, and right elbow. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies must be performed, and all findings must be set forth in detail. The VA examiner must diagnose any disability associated with claimed arthritis of the feet, hands, right ankle and right elbow (including with regard to any osteoarthritic condition, as well as rheumatoid arthritis). The examiner must then indicate whether any diagnosed disability was incurred during military service, based upon the Veteran's own assertions of in-service injury as well as the medical documentation of record; or whether there is any evidence contained in the claims folder that may, in retrospect be indicative of the onset of the disorders within one year of service. The examiner must include in the examination report the explanation for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she must so state, and further explain why it is not feasible to provide a medical opinion. ANY OTHER APPROPRIATE MEDICAL EXAMINATIONS FOR THESE OR ANY OTHER CLAIMS MUST ALSO BE CONDUCTED. 4. The RO/AMC must then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, the RO/AMC must readjudicate the claims on appeal in light of all additional evidence received. If the benefits sought on appeal are not granted, the Veteran must be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. These claims 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. 2012). _________________________________________________ VITO A. CLEMENTI 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).