Citation Nr: 1317751 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 12-33 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a left knee disability, to include as secondary to service-connected bilateral pes planus. 4. Entitlement to service connection for a right knee disability, to include as secondary to a left knee disability and/or service-connected bilateral pes planus. REPRESENTATION Veteran represented by: Michael J. Kelley, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran served on active duty from May 1978 to May 1982 and from August 1982 to September 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Board notes that claims for service connection for bilateral hearing loss, an acquired psychiatric disability, and a left knee disability were previously denied by the RO in a September 2001 rating decision, which became final when the Veteran failed to file a substantive appeal following the issuance of a March 2002 statement of the case. Thereafter, in November 2008, service treatment records were newly associated with the claims file that are relevant to the current claims and were in existence at the time of the September 2001 rating decision. As a result, the current claims for service connection for bilateral hearing loss, an acquired psychiatric disability, and a left knee disability will now be reconsidered on the merits. See 38 C.F.R. § 3.156(c) (2012). In March 2013, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present, there are no additional documents pertinent to this appeal in Virtual VA. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND After unsuccessfully trying to obtain the Veteran's service records from the National Personnel Records Center (NPRC) in September 1986 and April 1999, from the Massachusetts National Guard Office of the Adjutant General in March 2000, and from the Marine Corps Reserve Support Command in June 2000, the RO issued a memorandum of unavailability for the Veteran's service records in September 2001. Thereafter, however, the NPRC was able to obtain some service treatment records for the Veteran, which were associated with the claims file in November 2008. On remand, the RO should ensure, through a request to official sources, that all available service treatment records for the Veteran have been obtained and associated with the claims file. If any such records are unavailable, then the claims file must be annotated as such, and the Veteran must be so notified. In addition, the Veteran noted in his May 2008 claim that he had been treated at the VA Medical Center in Jamaica Plain, Massachusetts, and at the Causeway VA Outpatient Clinic in Boston, Massachusetts. On remand, all updated VA treatment records must be obtained and associated with the claims file. 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 the material could be determinative of the claim). Bilateral Hearing Loss The Veteran's available service treatment records do not contain any complaints, findings, diagnosis, or treatment of hearing loss in either ear. However, his DD Form 214 for his first period of service reflects that his military occupational specialty (MOS) was as a rifleman, and his DD Form 214 for his second period of service reflects that his MOS was as an infantry rifleman and a field artillery battery man. Thus, the Board concedes that the Veteran was exposed to loud noise during his active military service. Nevertheless, audiometric testing conducted at a March 1999 VA audiological examination showed that the Veteran did not have hearing loss in either ear according to VA disability standards See 38 C.F.R. § 3.385. In light of the fact that such examination was conducted more than 14 years ago, the Veteran should now be scheduled for a new VA audiological examination to obtain updated audiometric testing results and a medical opinion with adequate supporting rationale regarding the relationship between any current bilateral hearing loss disability and any incident of his military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Acquired Psychiatric Disability The Veteran's available service treatment records do not contain any complaints, findings, diagnosis, or treatment of an acquired psychiatric disability. His DD Form 214 for both of his periods of service documented that he received the Marine Corps Expeditionary Medal; however, the basis for such award has not been established, and should be established through official sources in order to determine if such award confirms combat participation by the Veteran. Post-service VA and private treatment records document psychiatric treatment for the Veteran. A December 1998 VA treatment record noted his report that he had been stressed for a long time, since the military. A January 1999 VA treatment record noted the Veteran's report of witnessing a friend's suicide while they were both in the military and that he had nightmares and intrusive thoughts about this event. The Veteran underwent a VA mental disorders examination in March 1999, at which time he reported that he had been depressed for a number of years following incidents that happened to him in the military. However, only the first page of this examination report is currently of record. On remand, the full report of this March 1999 examination must be obtained and associated with the claims file. 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 the material could be determinative of the claim). At his March 2013 hearing, the Veteran testified that he had been ordered to go into Iran during the Iran Hostage Crisis, but was stopped by the President calling off the assault when an American helicopter and airplane crashed into each other. He also testified that he had lost seven friends in the barracks after transferring to the artillery, and that such losses affected his depression significantly. Also at his March 2013 hearing, the Veteran's representative noted that the Veteran is receiving disability benefits from the Social Security Administration (SSA) for his mental condition (including depression and anxiety). A request must be made to the SSA for all records pertaining to the Veteran, including any decisions and any medical evidence relied upon in making those decisions. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In light of the above, the Veteran should be scheduled for a VA mental disorders examination to obtain a medical opinion with adequate supporting rationale regarding the relationship between any current acquired psychiatric disability and any incident of his military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Left and Right Knee Disabilities The Veteran contends that he currently has left and right knee disabilities as a result of injuries in service or as secondary to his service-connected bilateral pes planus. He also contends that his right knee disability is secondary to his left knee disability. The Veteran's available service treatment records do not contain any complaints, findings, diagnosis, or treatment of any left or right knee disabilities. However, he has repeatedly contended that he injured his left knee in service on two separate occasions: once in a car accident, and once playing football. At his March 2013 hearing, he added that he also injured his right knee playing football in service. Post-service VA and private treatment records document treatment for the Veteran for left and right knee pain. An April 1996 VA treatment record noted his report of pulling a ligament in his left leg once in a motor vehicle accident and once playing football. A June 1996 private treatment record noted his report of a ligament injury to his left knee in 1979. At an April 1999 VA feet examination, he again reported that he injured his left knee in service on two occasions, once playing football and once in a motor vehicle accident. He stated that he had walked abnormally with a limp ever since the motor vehicle accident. He was assessed with injury to the left knee with torn ligaments and residual torn meniscus. No examination of the right knee was conducted at that time. At his March 2013 hearing, the Veteran testified that he was seeing an orthopedist for treatment for his knees. On remand, all records pertaining to such treatment should be obtained. In addition, the Veteran's representative asserted that the Veteran's now service-connected bilateral pes planus could be affecting his knees. In light of the above, the Veteran should be scheduled for a VA knees examination to obtain a medical opinion with adequate supporting rationale regarding the relationship between any current left and right knee disabilities and any incident of his military service as well as his service-connected bilateral pes planus. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following actions: 1. Through official sources, request the Veteran's complete service treatment records for his periods of active service from May 1978 to May 1982 and from August 1982 to September 1985, in order to ensure that all available service treatment records for the Veteran have been obtained and associated with the claims file. If any such records are unavailable, then the claims file must be annotated as such, and the Veteran must be so notified. 2. Through official sources, establish the basis for the award of the Marine Corps Expeditionary Medal to the Veteran, in order to determine if such award confirms combat participation by the Veteran. 3. Ask the Veteran to identify all medical care providers who have treated him for his claimed disabilities since his discharge from service. After securing any necessary release(s), obtain those records, including from the orthopedist referenced at the March 2013 hearing. Any negative response must be noted in the record and communicated to the Veteran, and the Veteran should be informed that in the alternative he may obtain and submit the records himself. 4. Obtain the full report of the Veteran's March 1999 VA mental disorders examination from the appropriate VA medical facility, as well as all updated treatment records from the VA Medical Center in Jamaica Plain, Massachusetts, the Causeway VA Outpatient Clinic in Boston, Massachusetts, and all associated clinics, as well as any other VA facility identified by the Veteran or in the record. 5. Contact the SSA and request copies of all records pertaining to the Veteran, including any decisions and any medical evidence relied upon in making those decisions. If provided by disc, then print out the records and associate the copies with the claims file. Any negative search result is to be noted in the record and communicated to the Veteran. 6. After the above development is completed, schedule the Veteran for a VA audiological examination. Audiometric testing in accordance with VA standards must be conducted. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Based on the examination and review of the record, the examiner is to opine whether it is at least as likely as not (a 50 percent or greater probability) that any current bilateral hearing loss disability is related to any incident of the Veteran's military service, including his conceded loud noise exposure therein. A complete rationale for all opinions expressed must be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner is to state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 7. After the above development is completed, schedule the Veteran for a VA mental disorders examination. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Based on the examination and review of the record, the examiner is to opine whether it is at least as likely as not (a 50 percent or greater probability) that any current acquired psychiatric disability is related to any incident of the Veteran's military service, taking into account any combat participation (if and only if such was verified) and his reported military stressors. A complete rationale for all opinions expressed must be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner is to state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 8. After the above development is completed, schedule the Veteran for a VA knees examination. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Based on the examination and review of the record, the examiner is to opine whether it is at least as likely as not (a 50 percent or greater probability) that any current left or right knee disability: (a) is related to any incident of the Veteran's military service (taking into account his reported in-service incidents); or (b) was caused by or is aggravated by his service-connected bilateral pes planus. A complete rationale for all opinions expressed must be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner is to state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 9. Review the claims file to ensure that all of the foregoing development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate 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). These claims 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). _________________________________________________ ROBERT E. SULLIVAN 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).