Citation Nr: 1314200 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 10-22 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for left hip degenerative joint disease. 2. Entitlement to service connection for fungal nails of the feet. 3. Entitlement to service connection for an eye disability, to include a refractive error. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for thrombophlebitis. 6. Entitlement to service connection for right knee patellar tendonitis. 7. Entitlement to service connection for left knee patellar tendonitis. 8. Entitlement to service connection for a lumbar spine disability, to include lumbar strain, degenerative disc disease and degenerative facet joint disease. 9. Entitlement to service connection for a cervical spine disability, to include cervical strain and degenerative disc disease. ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from July 1980 to December 1980, from October 2003 to June 2004, and from November 2006 to March 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The appellant requested a personal hearing at the San Juan RO in a May 2010 substantive appeal. However, in a September 2010 statement, he canceled the hearing and stated that he wanted his record to be transferred to the Board as soon as possible. Thus, the hearing request was withdrawn. In a July 2012 statement, the appellant stated that he was suffering from tinnitus as a result of his hearing loss. His statements indicate he wishes to file a claim for service connection for tinnitus. Entitlement to service connection for tinnitus was denied by the RO in a January 2010 rating decision and the appellant did not appeal the decision. Thus, the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is 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 Following a December 2010 supplemental statement of the case, the appellant submitted additional evidence including private treatment records. The Board sent the appellant a letter in January 2013 informing him that this additional evidence was not previously considered by the Agency of Original Jurisdiction (AOJ) and that he had the right to such review prior to any Board adjudication. In February 2013, the appellant responded by requesting that the Board remand the case back to the AOJ for review of the additional evidence. Therefore, the case must be remanded to the AOJ for adjudication. See 38 C.F.R. § 20.1304(c) (2012); see also Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). In the February 2013 response, the appellant also requested representation from the Veterans of Foreign Wars (VFW) organization. The appellant was previously represented by VFW, but revoked their representation in April 2011. No recent VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) has been associated with the claims file. If it is the desire of the appellant to appoint VFW as his representative in the case, the appellant must clarify this appointment and submit the appropriate documentation, including a 21-22 (Appointment of Veterans Service Organization as Claimant's Representative). The AOJ must also ensure that all evidence in the claims file has been translated into English, to include private treatment records from July 2009 and February 2010. This must be done before the Board may adequately review the evidence. The newly submitted medical evidence was received following an April 2010 VA examination addresses the appellant's claims for entitlement to service connection for his knee, back and hip conditions. Thus, the RO should obtain another VA examination and opinion addressing whether the appellant has knee, hip, lumbar spine or cervical spine disabilities that are related to service. The appellant was provided with a VA examination in April 2009 regarding his fungal nail disability. However, the VA examiner did not provide an opinion as to whether the appellant has fungal nails of the feet that are related to service. The April 2009 VA examination indicates the appellant has fungal nails of the feet. The appellant has asserted that he has had fungal nails since service. As a lay person, the appellant is competent to report symptoms capable of lay observation such as having fungal nails. Therefore, a VA examination and opinion is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, in a July 2012 letter, the appellant indicated that he had been treated at San Juan VA Medical Center and the records were relevant to his claim. The VA treatment records in the file only date to December 2010. Consequently, the Board requests the appellant's complete VA treatment records from December 2010 to present. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and advise him that if he desires VFW to be his representative, he should submit the appropriate documentation, to include a 21-22 (Appointment of Veterans Service Organization as Claimant's Representative). 2. Obtain all of the appellant's VA treatment records from December 2010 to present. If no records are available, the claims folder must indicate this fact. 3. The AOJ must ensure that all evidence in the claims file has been translated into English, to include the July 2009 and February 2010 private treatment records. These English translations should be associated with the original(s) so that the Board can determine that all necessary translations have been obtained. 4. Following completion of the above, schedule the appellant for a VA examination to determine the following: (i) Identify all right and left knee, hip, lumbar spine and cervical spine disabilities. (ii) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the appellant has (1) a right knee disability; (2) a left knee disability; (3) a hip disability; (4) a lumbar spine disability; and/or (5) a cervical spine disability, that is caused by or related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 5. After completion of steps 1 and 2, schedule the appellant for a VA examination to (i) identify all fungal nail conditions of the feet and (2) determine whether any fungal nail conditions found are at least as likely as not (50 percent probability) caused by or related to service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 6. After completion of the above, readjudicate the issues on appeal and issue a supplemental statement of the case with consideration of the additional evidence submitted by the appellant since the December 2010 supplemental statement of the case. 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). _________________________________________________ M. E. LARKIN 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).