Citation Nr: 1312255 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 09-43 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for tinnitus, to include as secondary to asbestos exposure. 2. Entitlement to the restoration of a 10 percent evaluation for myositis ossificans, right ankle, and a 10 percent evaluation (or higher) from December 15, 2005. ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps June 1980 to June 1984, and in the Army from July 1987 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In April 1992, the RO granted service connection for a right ankle disability and awarded a 10 percent evaluation, effective November 13, 1991. The Veteran failed to report for a VA re-examination in April 1994. In a May 1994 letter, the RO proposed to terminate his benefits. The RO indicated that the Veteran needed to submit VA Form 21-4138 if he was ready to report for an examination. No response was received. Subsequently, in a July 1994 administrative decision, the RO terminated the Veteran's VA compensation benefits effective August 1, 1994. The Veteran did not file a disagreement. In a December 2005 VA Form 21-526, the Veteran filed a claim for his right ankle. The RO erroneously construed this as an increased rating claim and, in a July 2006 rating decision, continued the 10 percent evaluation. The right ankle issue has been recharacterized as noted on the title page to reflect this procedural history and the Veteran's contentions. In July 2006, the RO also denied service connection for tinnitus and hypertension. The Veteran did not perfect his appeal for service connection for hypertension by submitting a substantive appeal. Accordingly, the Board does not have jurisdiction over this issue. The Veteran requested a Board hearing on these matters, and received notice of the date and location of said hearing. The Veteran, however, failed to report for that hearing. Not having received a request for postponement, the Board considers the request for a hearing withdrawn. See 38 C.F.R. § 20.704(d). 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 finds that further evidentiary development is necessary before a decision can be reached on the merits of the Veteran's claims. As for the claim of service connection for tinnitus, the Board finds that additional development is needed to attempt to obtain private treatment records. In the December 2005 VA Form 21-526, the Veteran stated that he received treatment for tinnitus from Dr. A.F., a private provider, from March 1993 to the present. The RO did not request these records. Therefore, the RO should attempt to obtain these records. (The Veteran failed to report for a VA examination that was meant to obtain medical nexus evidence. Given the requirements of 38 C.F.R. § 3.655, the Board finds that no other action need be taken other than to complete the record with those documents about which VA has actual knowledge.) The right ankle appeal arises from the termination of the Veteran's VA compensation benefits. The record reflects that the Veteran was in receipt of service-connected benefits for a right ankle disability from November 13, 1991. In April 1994, the RO requested that a VA medical facility schedule the Veteran for a routine follow-up examination to determine the current severity of his right ankle disability. The RO sent the Veteran a letter on April 21, 1994 to his last known address of record indicating that an examination was going to be scheduled. It is unclear whether the local VA medical facility subsequently sent the Veteran a letter informing him of the April 21, 1994 examination. In any event, the Veteran has acknowledged receiving notice of the examination. Specifically, he maintains that he "informed the VA in Houston that I did not have the means to make the six hundred mile round trip." See July 2007 Notice of Disagreement (NOD). The RO subsequently sent a letter to the Veteran on July 26, 1994 indicating that his VA compensation benefits were being terminated effective August 1, 1994. There is no correspondence between the RO and the Veteran between July 1994 and December 15, 2005, when the Veteran filed the instant claim. In the July 2007 NOD, the Veteran requested "reinstating of service connected [] benefits to be retroactive to the first day they were suspended." He claims that he contacted the Houston RO to inform them that he was unable to attend the April 1994 examination, but "was [] not given the option to reschedule the exam." The RO did not address the Veteran's argument that he is entitled to payment of benefits from August 1, 1994 to December 15, 2005 for service-connected myositis ossificans, right ankle. Instead, in a July 2006 rating decision, the RO erroneously continued the 10 percent evaluation. In addition, the Veteran contends that he is entitled to a higher evaluation for his service-connected right ankle disability. He maintains that the range of motion in that ankle is severely limited and that his gait has been severely affected. Thus, a remand is required so that the agency of original jurisdiction (AOJ) may consider this argument and undertake additional evidentiary development as appropriate. In addition, there are private treatment records that should be obtained. In the December 2005 VA Form 21-526, the Veteran stated that he received treatment for his right ankle from Dr. A.F. from July 1993 to the present. The RO did not request these records. In a May 2006 VA Form 21-4142, the Veteran indicated that he received treatment for his right ankle from Advance Orthopedic Institute from February 2006 to the present. The Veteran submitted copies of records from this provider. However, the Board notes that they are incomplete. Therefore, the RO should attempt to obtain these private treatment records. Accordingly, the case is REMANDED for the following action: 1. Once a signed release is received from the Veteran, obtain outstanding records of private treatment that he received from Dr. A.F. from March 2003 to the present, and from Advance Orthopedic Institute from February 2006 to the present. All attempts to procure records should be documented in the file. If these records cannot be obtained, a notation to that effect should be inserted in the file. Any such available records should be associated with the claims file. 2. Then, readjudicate the claims on appeal. If either of the benefits sought remain denied, issue a supplemental statement of the case and provide the Veteran the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The appellant 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 Supp. 2012). _________________________________________________ J.A. MARKEY 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).