Citation Nr: 1318147 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-27-434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to an initial disability rating in excess of 10 percent for low back disability prior to January 31, 2013, and in excess of 20 percent from January 31, 2013. 3. Entitlement to a compensable initial disability rating for bilateral pes planus. 4. Entitlement to an initial disability rating in excess of 10 percent for right ankle disability. 5. Entitlement to an initial disability rating in excess of 10 percent for left ankle disability. 6. Entitlement to a compensable initial disability rating for right knee disability prior to January 31, 2013, and in excess of 10 percent from January 31, 2013. 7. Entitlement to an initial disability rating in excess of 10 percent for left knee disability. 8. Entitlement to a compensable initial disability rating for pseudofolliculitis barbae (PFB). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from March 1983 to December 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction over the case was subsequently transferred to the RO in Pittsburgh, Pennsylvania. When the case was before the Board in October 2012, it was decided in part and remanded in part for additional development. In a March 2013 Decision Review Officer decision, the Appeals Management Center (AMC) increased the rating for the Veteran's low back disability from 10 to 20 percent, effective January 31, 2013. In the same decision, the AMC increased the rating for the Veteran's right knee disability from noncompensable to 10 percent, effective January 31, 2013. As the ratings for the Veteran's low back and right knee disabilities are less than the maximum available rating during portions of the period of the claim, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). REMAND Additional development is required before the issues on appeal can be adjudicated. In April 2013, the Veteran filed an informal claim of entitlement to service connection for tinnitus as a result of noise exposure during service. He further asserted that his claim for service connection for bilateral hearing loss should be reevaluated as secondary to his tinnitus disability. The claim of entitlement to service connection for tinnitus is "inextricably intertwined" with the issue of entitlement to service connection for bilateral hearing loss, and the disposition of the bilateral hearing loss claim must therefore be deferred pending the resolution of the preliminary matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). In January 2013, the Veteran indicated that he received treatment for his service-connected low back, bilateral ankle, bilateral knee, and PFB disabilities at the American Mission Hospital in Bahrain from February 2008 through February 2010. He signed the appropriate consent form and requested that the records be obtained. There is no indication that the originating agency attempted to request or obtain such records. As the aforementioned private treatment records are potentially relevant to the issues on appeal, further development to obtain these records is in order. 38 C.F.R. § 3.159 (c)(1) (2012). Likewise, in an April 2013 statement, the Veteran indicated that he would be undergoing additional VA examination and treatment for his low back disability, later that same month. There is no indication that the originating agency attempted to request or obtain such records. The Veteran's outstanding VA outpatient treatment records must be obtained. 38 C.F.R. § 3.159 (c)(2) (2012); 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). Further, with respect to all of the issues noted on the title page, although VA outpatient treatment records dated from January 2008 through December 2008 and from September 2012 through October 2012 were received in January 2013, it is not clear to the Board if such were reviewed by the originating agency. The Veteran has not submitted a waiver of the right to have the evidence reviewed by the originating agency. See 38 C.F.R. § 20.1304 (2012). Accordingly, this case is REMANDED to the RO or the AMC, in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake all indicated development in response to the claim of entitlement to service connection for tinnitus and then adjudicate the claim. The Veteran should be informed of his appellate rights with respect to the decision. 2. The RO or the AMC should undertake appropriate development to obtain a copy of any outstanding treatment records pertaining to the disabilities at issue in this appeal, to include records pertaining to the Veteran's treatment at the American Mission Hospital in Bahrain from February 2008 through February 2010 and VA outpatient treatment records dated from October 2012 to the present. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record, and the Veteran and his representative so notified. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). As noted above this case has been advanced on the Board's docket. It must also must be handled in an expeditious manner by the RO. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Shane A. Durkin 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).