Citation Nr: 1315586 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 05-01 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Todd Hammond, Attorney WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1983 to July 1986. He had subsequent service in the Texas Army National Guard until his discharge in 1989. This matter initially came before the Board of Veterans' Appeals (Board) from a January 2003 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Portland, Oregon. In September 2006, the Veteran testified at a Travel Board hearing at the RO before a Veterans Law Judge. A copy of the hearing transcript has been associated with the claims file. In March 2007, the Board remanded the case to the RO for further development. In January 2010, the Board denied the claims of service connection for low back and right knee disorders. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In conjunction with the appeal, while the case was pending at the Court, the attorney then representing the Veteran and VA's Office of the General Counsel filed a Joint Motion to vacate the Board's decision and remand the claims for readjudication. In a March 2012 Order, the Court granted the Joint Motion. In April 2012, the Veteran was informed that the Veterans Law Judge who conducted the September 2006 Travel Board hearing is no longer employed by the Board. The Veteran was informed that the law requires that the Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707. However, if that Veterans Law Judge is no longer available, the Chairman has the authority to reassign the appeal to another Veterans Law Judge for a decision. 38 C.F.R. § 19.3(b). The Veteran was also informed that he had a right to another Board hearing with another Veterans Law Judge who would participate in a decision on the appeal. 38 C.F.R. § 20.717. In response to the correspondence, the Veteran requested another Travel Board hearing before a Veterans Law Judge at the RO. In September 2012, the Board remanded the claims to the RO to schedule the Veteran for another Travel Board hearing at the RO before a Veterans Law Judge. In March 2013, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge at the RO. A copy of the hearing transcript has been associated with the claims file. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in the paperless claims file reveals that they are either duplicative of the evidence in the paper claims file or they are irrelevant to the issue on appeal. Additionally, in a July 2011 rating decision, the RO granted service connection for bilateral hearing loss and assigned an initial noncompensable evaluation, effective April 4, 2011. In an August 2011 statement, the Veteran indicated that he disagreed with the RO's determinations and wished to appeal. The Board finds that the Veteran's August 2011 statement falls squarely within the regulatory framework for the filing of a notice of disagreement (NOD). The correspondence is in writing and expresses the Veteran's dissatisfaction with the rating assigned for his service-connected bilateral hearing loss. His statement was received within the requisite one-year time period of notification of the July 2011 rating decision. 38 C.F.R. §§ 20.201, 20.302 (2012). The NOD post-dated the rating decision and the date of the assignment of the noncompensable evaluation. Because the Veteran has disagreed with the initial ratings assigned following the grant of service connection for bilateral hearing loss, the Board characterized the claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). The record currently available to the Board contains no indication that the RO has issued a Statement of the Case (SOC) addressing the issue of entitlement to an initial compensable evaluation for bilateral hearing loss, effective April 4, 2011. Under these circumstances, a remand is necessary. See 38 C.F.R. § 19.9(c) (2012); see also Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) (where a claimant has submitted a notice of disagreement, but a Statement of the Case has not yet been issued, a remand is necessary). The issue of entitlement to an increased rating for tinnitus, currently evaluated as 10 percent disabling, 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 As discussed above, in a July 2011 rating decision, the RO granted service connection for bilateral hearing loss and assigned an initial noncompensable evaluation effective April 4, 2011. Although the Veteran submitted an NOD with the RO's determination in August 2011, the record currently before the Board contains no indication that the RO has issued an SOC addressing the issue. Therefore, a remand for this action is now necessary. Manlincon v. West, 12 Vet. App. 238 (1999). With respect to the Veteran's claims of service connection for low back and right knee disorders, a remand is necessary to ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claims and to ensure full compliance with due process requirements. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Specifically, the Veteran's service treatment records and service personnel records are incomplete, and it is not apparent that all efforts to secure these records have been accomplished. The entirety of the Veteran's service treatment records and service personnel records covering the period of enlistment in the active Army, from March 1983 to July 1986, have not been obtained and associated with the record, with the exception of an October 1985 Reserve Officer Training Corps (ROTC) examination and associated report of medical history. In the report of medical history, the Veteran noted that he was hospitalized in August 1981 for back strain; in October 1983, during "FTX," he fell and sprained his right knee; and in October 1984, he had a knee injury that was treated at Bayne-Jones Army Community Hospital. The ROTC examination and report of medical history were submitted by the Office of the Adjutant General for the State of Texas following a records request from the RO dated in December 2001. The only service treatment record for the Veteran's period of service in the Army National Guard was a copy of an April 1988 note, submitted by the Veteran, indicating that the Veteran was to be assessed by an orthopedist for "possible separation from service secondary to inability to meet armed forces physical standards and inability to perform physical standard test." The Board notes that the RO made several attempts to obtain the Veteran's service treatment records and service personnel records from the National Personnel Records Center (NPRC) and the Texas National Guard Headquarters in Austin, Texas. The RO most recently sought to obtain the outstanding service treatment records via Personnel Information Exchange System (PIES) requests to the NPRC in September and November 2009 using the Veteran's identifying information, his period of active service, branch of service, pay grade, and character of discharge. The responses indicated that there were no service treatment records pertaining to the Veteran at Code 13 and a record could not be identified based on the information furnished. However, throughout the record, the Veteran reported that he applied for an ROTC scholarship during his period of active service. As noted above, the record includes an October 1985 ROTC examination report and an associated report of medical history. The evidence shows that he was provided a "conditional" selection for Army ROTC "pending medical qualification" in June 1986. During the September 2006 Travel Board hearing, the Veteran reported that he attended college while he was in the Army National Guard. In a November 2003 private medical opinion, the Veteran reported that he was still having low back pain in 1988 and he was unable to continue in the ROTC program after a surgeon provided an opinion that he may have needed "surgical rodding" of his spine. Provided that the Texas Army National Guard submitted a copy of the October 1985 ROTC examination and report of medical history, and the timeline of events pertaining to the Veteran's early release from the ROTC program, the Board finds that the RO should make further attempts to obtain the Veteran's service treatment records from the Texas National Guard Headquarters and the NPRC. If, after an exhaustive search, such verification cannot be made, the record should be so reflected. The RO must also seek to obtain copies of an Army Inspector General (IG) report dated in November 1983 pertaining to an incident at Fort Polk, Louisiana, in which the Veteran claims that he was ordered to perform field exercises with his company by a Sergeant First Class while his right leg was in a cast and he was on physical profile. In a September 2006 statement and during the September 2006 Board hearing, the Veteran claimed that he injured his right knee while working as a fuel handler at Fort Irwin in California. He stated that he returned to Fort Polk for treatment where his right leg was casted and he was placed on profile. He indicated that the Sergeant First Class ordered him to go to the field. He stated that he called his wife and asked her to drive down to the motor pool where she wrote down all of the facts of the incident. He reported that she proceeded to go o the IG's office and filed a complaint against the Sergeant First Class on the Veteran's behalf. Additionally, during the March 2013 Board hearing, the Veteran's attorney reported that the Veteran filed a workers' compensation claim for an injury during his employment with the United Parcel Service (UPS). The attorney testified that the claim was denied because the Veteran had a pre-existing back injury during service. He stated that no benefits were paid. However, the Board notes that during the September 2009 VA examination, the Veteran reported that his workers' compensation claim was initially denied, but eventually the parties settled and his costs were paid. A review of the claims file shows evidence of a workers' compensation claim; specifically, a statement from the private physician who performed a November 1987 lumbar discectomy and a statement from UPS stating that the Veteran was injured in October 2007 while "bending and lifting." There are no other workers' compensation records associated with the claims file. Finally, the Board notes that VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In a January 2013 independent medical examination report, a private physician contended that the September 2009 VA examiner's opinions "fail[ed] to reference any of the objective medical evidence" that he relied on; "fail[ed] to consider [the Veteran's] failure to meet the U.S. Army's physical medical qualifications and his failure to qualify for the conditional ROTC Scholarship Award"; failed to consider the Veteran's 1987 workers' compensation claim that was "denied due to his preexisting injury to his lumbar spine while on Active Duty in the U.S. Army"; and failed to consider private treatment reports and radiographic evidence. Accordingly, the case is REMANDED for the following action: 1. The RO should issue an SOC to the Veteran and his attorney addressing the issue of entitlement to an initial compensable evaluation for bilateral hearing loss, effective April 4, 2011. The SOC must include all relevant law and regulations pertaining to the claim. The Veteran must be advised of the time limit in which he may file a substantive appeal, if he so desires. 38 C.F.R. § 20.302(b) (2012). This issue should then be returned to the Board for further appellate consideration, only if an appeal is properly perfected. 2. The RO should contact the NPRC and the Texas National Guard Headquarters to determine if there are any available service treatment records and/or service personnel records. Should, after an exhaustive search, no records be determined to be available, the RO must annotate the record to reflect such a finding. 3. The RO must seek to obtain any outstanding copies of an Army IG report dated in November 1983 pertaining to the Veteran's claim that he was ordered to perform field training at Fort Polk while his right leg was in a cast. If VA is unsuccessful in obtaining any documentation of the OSI investigation, it must inform the Veteran and provide him an opportunity to submit copies of any documentation pertaining to the OSI investigation or the claimed in-service sexual assault attempt. 4. The RO should attempt to obtain any available decisions, with supporting medical records, with respect to any workers' compensation claims filed by the Veteran for a low back injury in October 1987. Any available records should be associated with the claims file. 5. After the above development has been conducted, the RO should return the claims folder to the VA examiner who conducted the September 2009 VA examination, if available. If the examiner is unavailable, the claims file should be provided to another suitably qualified VA examiner, for a medical opinion to determine the nature and etiology of the Veteran's current low back and right knee disabilities. The examiner should first identify whether the Veteran's current low back and right knee disabilities, are at least as likely as not (50 percent probability or more) causally or etiologically related to the Veteran's military service. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's available service treatment records, post-service medical records, and statements. In rendering the requested opinions, the examiner should specifically address the October 1985 ROTC examination report and the associated report of medical history; the private treatment reports dated in November 1987 June 1988, pertaining to the Veteran's lumbar spine injury during his post-service employment at UPS; private medical opinions dated in November 2003, January 2005, June 2011, July 2012, and January 2013; private radiology reports dated in November 2003, December 2004, and May 2012; statements from fellow service members and the Veteran's sister; and the Veteran's hearing testimony and various statements. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. 6. The RO should review the examination report to ensure that it is in complete compliance with this remand. If the report is deficient in any manner, the RO should implement corrective procedures. 7. After completing the above actions, the RO should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 8. When the development has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). 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). _________________________________________________ H. N. SCHWARTZ 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).