Citation Nr: 1315443 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 10-24 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to a compensable rating for left ear hearing loss. 2. Entitlement to service connection for a cervical spine disorder, claimed as a neck strain, to include as secondary to service-connected low back syndrome. 3. Entitlement to service connection for a bilateral foot disorder, to include the residuals of surgery to the great toes. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from October 1970 to June 1972, to include service in the Republic of Vietnam from December 1971 to June 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Board notes that the Veteran also perfected an appeal with respect to the issue of whether new and material evidence had been received in order to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). However, a December 2011 rating decision granted service connection for PTSD. Therefore, as such represents a grant of the full benefit sought on appeal, this issue is no longer properly before the Board. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in November 2012. A hearing transcript has been associated with the Veteran's Virtual VA paperless claims file. In addition, the record was held open for 60 days after this hearing to allow the Veteran the opportunity to submit additional evidence. During the November 2012 hearing, the Veteran raised the issue of entitlement to service connection for jungle rot of both feet. The Board notes that this claim for service connection had been previously denied by the RO. Therefore, the issue of whether new and material evidence has been received to reopen a claim for service connection for jungle rot of both feet is referred to the agency of original jurisdiction (AOJ) for appropriate action. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal with the exception of the Board hearing transcript. In this regard, while there are additional VA treatment records contained in Virtual VA, they are relevant only to the Veteran's service-connected PTSD and schizophrenia, which is not presently before the Board. Therefore, as such records do not pertain to any of the disorders on appeal, they are irrelevant. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND With respect to the issues on appeal, the Board finds that a remand is necessary in order to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Relevant to all claims, the Board finds that a remand is necessary in order to obtain outstanding Social Security Administration (SSA) records. The Board notes that the Veteran reported receiving Supplemental Security Income (SSI) benefits on multiple occasions, including in April 2008, but the basis of such an award and whether the Veteran is still in receipt of such benefits is not clear from the current record. The United States Court of Appeals for Veterans Claims has held that where there has been a determination with regard to Social Security benefits, the records concerning that decision must be obtained. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Therefore, such records should be obtained on remand. During his November 2012 hearing, the Veteran testified that he had received treatment at the Meriden Wallingford Hospital for his claimed neck disorder in the late 1970s or early 1980s. He also testified that this facility is now called the Mid-State Medical Center. Although the Veteran indicated that he would attempt to obtain these treatment records and the current record was held open for an additional 60 days to allow for the submission of such evidence, such records have not been received by VA and neither the Veteran nor his representative have indicated that they are otherwise unavailable. In addition, the Veteran reported in a July 1999 VA treatment note that he had injured himself lifting weights two years ago, while incarcerated, although, it is not clear where the Veteran had been incarcerated. Therefore, a remand is necessary in order for the Veteran to be provided with an opportunity to identify such outstanding private treatment records and, thereafter, VA should attempt to obtain them on his behalf. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For below noted reasons, the Board finds that a VA examination is necessary in order to determine the nature and etiology of the Veteran's claimed neck and bilateral foot disorders. The Veteran has alleged sustained an injury to his right foot, neck, and back in a tractor-trailer accident, which occurred while serving in Vietnam. Specifically, he has alleged that he was driving a tractor-trailer of napalm when he was struck from behind by another vehicle causing him to hit another tractor-trailer head-on. The Veteran also alleged an in-service injury to his right foot, specifically the great toe, when a large tire fell on his feet when he was changing it. Service treatment records document that the Veteran sustained a back injury in March 1972 after falling backwards. He reported in a July 1972 VA examination that he had fallen from a grease rack in April 1972 and a January 1973 rating decision granted service connection for low back syndrome based upon these reports of a fall. A May 2011 VA examiner opined that it was more likely that the Veteran's lumbar spondylolisthesis and degenerative disc disease were the result of many years of work in construction and were not the result of the claimed in-service motor vehicle accident. However, this examiner did not address the Veteran's contentions that his neck disorder was caused or aggravated by his service-connected low back syndrome. In addition, there appears to be some confusion as to the claimed disability in the record, as the May 2011 VA examiner appears to be offering an etiological opinion as to the Veteran's service-connected lumbar spine disorder rather than the claimed neck disorder. Moreover, the Veteran has not yet been afforded a VA examination with respect to his claimed bilateral foot disorder. As such, in light of these deficiencies and the Veteran's testimony regarding the in-service events, he should be scheduled for a VA examination to determine the nature and etiology of his claimed neck and bilateral foot disorders. Additionally, while on remand, the Veteran should be provided Veterans Claims Assistance Act of 2000 (VCAA) notice as to the evidence and information necessary to substantiate his claim for service connection for a neck disorder as secondary to his service-connected low back syndrome. Relevant to the Veteran's increased rating claim, the Board observes that he was most recently afforded a VA examination in June 2011 so as to determine the current nature of his left ear hearing loss. Therefore, after any additional records are obtained, the AOJ should review them and then conduct any additionally indicated development, to include obtaining any VA examinations and/or addendum opinions, necessary to decide such claims. Finally, due to the length of time which will elapse on remand, updated VA treatment records dated from September 2011 to the present from the West Haven VA Medical Center (VAMC) should be obtained for consideration in the Veteran's appeal. The Board notes that Veteran testified that he received treatment from this facility during his November 2012 hearing. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his claim of entitlement to service connection for a neck disorder as secondary to service-connected low back syndrome. 2. Any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained from SSA and associated with the claims file. All efforts to obtain these records should be documented in the claims file. If no such records are available, the Veteran should be so informed and also told of the efforts to obtain the records. 3. Contact the Veteran and request that he complete and submit an updated VA Form 4142, Authorization and Consent to Release Information to the VA, in favor of Meriden Wallingford Hospital, now Mid-State Medical Center, as well as the appropriate Department of Corrections facility. He should be informed that he may submit his private treatment records if he so chooses. All efforts to obtain these records should be documented in the claims file. If no such records are available, the Veteran should be so informed and also told of the efforts to obtain the records. 4. Obtain the Veteran's updated treatment records from the West Haven VAMC pertaining to his left ear hearing loss, neck disorder, and bilateral foot disorder dated from September 2011 to the present. All efforts to obtain these records should be documented in the claims file. If no such records are available, the Veteran should be so informed and also told of the efforts to obtain the records. 5. After completion of the above development, and after obtaining any outstanding records, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his claimed neck and bilateral foot disorders. All indicated tests and studies should be undertaken. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. The examiner is asked to furnish an opinion with respect to the following questions: a) Identify all diagnoses of the Veteran's neck or cervical spine. The examiner should identify all such disorders that have been present at any time since January 2009. (b) For each diagnosed disorder of the neck or cervical spine, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder is related to the Veteran's military service, to include his document in-service fall in March 1972 and the purported motor vehicle accident while serving in Vietnam. (c) Is it at least as likely as not that the Veteran's diagnosed neck or cervical spine disorder was caused OR aggravated by his service-connected low back syndrome? (d) If arthritis is diagnosed in any joint of the cervical spine, did such manifest to within one year of the Veteran's discharge (i.e., June 1972)? If so, what were the manifestations? (e) Identify all diagnoses of the Veteran's bilateral feet, to include the great toes. The examiner should identify all such disorders that have been present at any time since January 2009. (f) For each diagnosed disorder of the bilateral feet, to include the great toes, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder is related to the Veteran's military service, to include his document in-service fall in March 1972, the purported motor vehicle accident while serving in Vietnam, and/or his alleged injury when a big tire fell on his right foot, to include his great toe. The examiner should specifically consider the documented in-service fall, which occurred in March 1972, as well as the Veteran's lay statements regarding his in-service injury and the continuity of symptomatology. The examiner should also specifically consider the Veteran's reports of being involved in a tractor-trailer accident and having a big tire fall on his foot while stationed in Vietnam. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding incurrence and continuity of symptomatology. The rationale for any opinion offered should be provided. 6. Relevant to the Veteran's left ear hearing loss claim, after any additional records are obtained, the AOJ should review them and then conduct any additionally indicated development, to include obtaining any VA examinations and/or addendum opinions, necessary to decide such claim. 7. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). These claims 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). _________________________________________________ A. JAEGER 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).