Citation Nr: 1315779 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 12-34 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for arthritis of the bilateral lower extremities. 2. Entitlement to service connection for a left hip disability, to include total left hip replacement. 3. Entitlement to service connection for a right knee disability, to include total right knee replacement. 4. Entitlement to service connection for a low back disability, to include degenerative disc disease and arthritis of the lumbar spine. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for tinnitus. 7. Entitlement to service connection for residuals of head trauma. ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran had active duty service from August 1952 to May 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Pittsburgh, Pennsylvania. The Veteran was afforded an April 2011 Decision Review Officer (DRO) hearing at the RO. A hearing transcript is associated with claims folder. In his October 2012 substantive appeal, the Veteran requested a videoconference hearing before the Board. A hearing was scheduled in March 2013, but the Veteran failed to appear without showing good cause. The hearing request is deemed withdrawn. 38 C.F.R. § 20.702. A review of the Virtual VA paperless claims processing system does not show any pertinent evidence that is not already associated with the claims folder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 has not been afforded a VA examination for any of his claims. As detailed below, examinations are necessary to fulfill VA's duty to assist. VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. Personnel records confirm that the Veteran had parachute training. He reports making about 22 jumps in service. Following his jumps, he had musculoskeletal pain, and on one occasion, a head injury. He did not seek medical attention. He also experienced noise exposure during military exercises. The Veteran is competent to describe his parachute jumps, recollections of musculoskeletal pain and head injury, and instances of noises exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1376- 77 (Fed. Cir. 2007). Although his April 1954 separation examination and Report of Medical History do not include complaints about musculoskeletal pain, hearing problems, or a head injury, his reports are not facially inconsistent with the available personnel records. They are generally plausible. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). Accordingly, the Board considers the Veteran's reports probative to show an in-service event, notwithstanding his service treatment records. The Veteran submitted private medical records showing a total right knee replacement, left hip replacement, hearing loss, and degenerative disc disease. VA treatment records note osteoarthritis and hearing loss as active problems. At the DRO hearing, he reported that he had had musculoskeletal pain ever since service. He also asserts having head injury residuals from a parachute landing injury. Thus, current disabilities are suggested by the record. The medical evidence is silent regarding a nexus, and the Board may not substitute its own opinion of a nexus. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As noted above, the nexus criteria for purposes of triggering VA duty to provide an examination is low and reports of a continuity of symptomatology are usually sufficient. Locklear, 20 Vet. App. 410. Here, the Veteran has asserted a continuity of symptomatology to meet the low nexus threshold, and the Board finds that appropriate VA examinations are necessary. 38 C.F.R. § 3.102; McLendon, 20 Vet. App. at 83; Locklear, 20 Vet. App. 410. It also appears that the Veteran continues to have VA treatment. Any pertinent VA treatment records must be obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request that the Veteran identify any medical treatment records for his claimed disabilities and furnish appropriate authorization for the release of private medical records. Take the necessary steps to obtain all records of VA treatment for these disabilities. Efforts to obtain VA records must continue until they are obtained, or it is reasonably certain that they do not exist or that further efforts would be futile. If the Veteran fails to furnish any necessary releases for private treatment records, he should be advised to obtain the records and submit them to VA. If any requested records cannot be obtained, inform the Veteran of this fact, of the efforts made to obtain the records and of any additional efforts that will be made with regard to his appeals. 2. After associating any updated medical records with the claims folder, schedule the Veteran for a general VA examination to evaluate his musculoskeletal disabilities and claimed head injury residuals. A clinical interview and examination with any necessary medical testing must be conducted. After complete review of the claims folder and clinical examination, the examiner is asked to opine for each claimed disability (lumbar spine, left hip, arthritis of both lower extremities, right knee, and left hip disability) on whether it is as likely as not (probability of 50 percent or greater) related to service. The examiner is also asked to determine whether Veteran has any residual head injury, and if so, whether it is as likely as not (probability of 50 percent or greater) related to service. The examiner must consider the Veteran's reports of in-service parachute jumps as credible. A complete rationale for all opinions should be given. The Veteran is competent to report his observable symptoms and relate his medical history. If the examiner rejects the Veteran's reports, he or she must explain why and cannot rely solely on the absence of contemporaneous medical treatment to do so. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 3. After associating any updated medical records with the claims folder, schedule the Veteran for a VA audiology examination with a state licensed audiologist. The claims folder, a copy of this Remand, and access to the Virtual VA efolder must be given to the examiner, who should acknowledge receipt and review of the records. The examiner should interview the Veteran about noise exposure and his hearing loss history. He must be afforded a puretone audiometry test and Maryland CNC speech discrimination test. Based upon test results and a complete review of the record, the examiner must express an opinion as to whether it is more likely than (50 percent probability or greater) that the Veteran's current hearing loss is related to in-service noise exposure. A detailed rationale must be provided. If the Veteran's hearing loss is deemed related to service, the examiner should furthermore list the functional impairments caused by hearing loss. The Veteran is competent to describe his reports of noise exposure and hearing loss history. His reports must be considered. If the examiner rejects the Veteran's reports, an explanation must be given and it cannot solely be based upon an absence of contemporaneous audiological treatment. If the examiner cannot provide an opinion without resort to speculation, he or she explain why and identify any outstanding medical records that would facilitate a non-speculative opinion. 4. Carefully review the examination reports to ensure that they are in compliance with the Remand instructions. 5. After completing all development required to adjudicate the Veteran's claims, re-adjudicate these issues. If the benefit sought remains denied, the Veteran should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ 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).