Citation Nr: 1315622 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 08-10 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a rating in excess of 10 percent for post operative residuals of left medial meniscectomy. 2. Entitlement to a compensable rating for hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from August 1958 to March 1962 and from December 1966 to April 1968. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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 Veteran was scheduled for VA examinations in September 2011 to assess the current severity of both his hearing loss and his knee disability. Records from QTC Services reflect that the Veteran did not appear for either examination. When a Veteran fails to report for an examination scheduled in conjunction with an original compensation claim without good cause, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). In this case, it appears notice of the examinations may have been sent to an outdated address for the Veteran. In February 2010 the Veteran filed a statement in which he listed a new address in Isla Vista. However, an August 2011 examination request report lists the Veteran's previous address of record in Ventura. The letters sent to the Veteran regarding the scheduling of his VA examinations are not in the file; however, other correspondence sent during the same time frame suggest the VA had not updated the Veteran's address for mailing purposes. Specifically, in September 2011 a supplemental statement of the case was sent to the Veteran's same previous address in Ventura, and in August 2012 a Board hearing notice was also sent to that address. A handwritten note on the hearing notice reflects that the Veteran did not appear at the hearing and "wrong address" is noted. In August 2012 the Veteran's representative sent a letter to the VA noting the Veteran's new mailing address, which at that time was in Goleta. Thus, it appears that although the Veteran had provided the VA with his new address in Isla Vista in 2010, correspondence continued to be sent to his previous address in Ventura until at least August 2012. Presumably that included letters regarding the scheduling of the missed September 2011 examinations. The Veteran was not scheduled for a new examination for either his hearing or his knee disability after he missed the September 2011 examinations. Given the evidence regarding the Veteran's address change, the Board finds it is likely he did not receive notice of the September 2011 examinations and thus had good cause for failing to report. The Veteran's last VA examinations for his knee and hearing loss were done in December 2006. As the Veteran's statements and treatment records indicate his disabilities could have worsened since those examinations, the Board finds more contemporaneous examinations are needed to evaluate the current severity of his conditions. Specifically, in February 2010 the Veteran submitted a statement that he felt his knee had gotten worse and attached a radiology consultation request form reflecting a study had recently been ordered on his knee. A March 2008 VA treatment record reflects that the Veteran complained of hearing loss and a hearing examination may have been ordered. Therefore, the Board finds the Veteran had good cause for missing his scheduled September 2011 examinations and new, contemporaneous examinations are required and should be scheduled, with notice sent to the Veteran's current mailing address. Further, the Veteran's recent VA treatment records from the VA Santa Barbara Community Based Outpatient Clinic (CBOC) have not been obtained, despite indications that the Veteran has continued to seek treatment there. In fact, in the Veteran's February 2010 filing he specifically noted that the radiology report regarding his knee was on file with the Santa Barbara CBOC. Nonetheless, the Veteran's VA treatment records have not been associated with his claims file since March 2008. Those records must be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all records from the VA Santa Barbara Community Based Outpatient Clinic from March 2008 to present. All efforts to obtain VA records should be fully documented, and the VA facility should provide a negative response if records are not available. 2. After all VA records have been associated with the claims file, the RO should arrange for the Veteran to undergo a VA examination to assess the current severity of the Veteran's left knee disability. The claims folder should be made available to the examiner for review. All tests and studies, to include range of motion testing, that the examiner deems necessary should be performed. 3. After all VA records have been associated with the claims file, the RO should arrange for the Veteran to undergo VA audiology examination to assess the current severity of the Veteran's hearing loss. Audiometric and any other indicated testing, including Maryland CNC testing, should be conducted and all clinical findings reported in detail. The claims folder should be made available to the examiner for review. 4. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative 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 appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ MICHELLE L. KANE 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).