Citation Nr: 1322002 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 10-03 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus, to include as secondary to a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2001 to September 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran was scheduled to present testimony before a traveling Veterans Law Judge in April 2013. However, the Veteran failed to report to the hearing. As neither the Veteran nor his representative have requested that the hearing be rescheduled, the Board deems the Veteran's request for such a hearing to be withdrawn. See 38 C.F.R. § 20.704(2012). 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 Unfortunately, a remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. At the outset, the Board observes that with the exception of separation reports of medical history and examination, it appears that the Veteran's complete service treatment records, to include records from the Womack Army Medical Center as alluded to in his June 2009 Notice of Disagreement, have been obtained and associated with the record for review. In this regard, with the exception of limited records obtained through the Defense Personnel Records Imaging System (DPRIS) in April 2008, there is no indication that the Veteran's complete service personnel records have been requested. As the Veteran's service personnel records may contain separation reports of medical history and examination, his complete service personnel records should be obtained and associated with the claims file. As to the claimed right knee disability, the Veteran contends that he as a current right knee disability associated with an in-service right knee injury sustained in 2002 during a nighttime land navigation training/test. A review of the Veteran's service treatment records shows that in May 2002, he indeed sustained injury to his right knee during a nighttime land navigation exercise as alleged. His gait was described as antalgic and examination of his right knee was significant for findings of effusion and a positive patellar grind test. Diagnostic impression was a ligament strain and he was placed on limited duty for 15 days. On a follow-up right knee evaluation three weeks later, there was still some pain reported with prolonged activity. Diagnostic assessment was a resolving right knee sprain. A temporary limited T3 physical profile for the lower extremity was renewed for 1 month. Complaints of right knee pain were again noted in November 2003 after the Veteran fell and slipped on wet tile. It was noted that the Veteran's right knee was initially injured in April 2002 and he endorsed performance of hot/cold treatments. Examination of the right knee was significant for findings of pain and tenderness on palpation over the right medial posterior patella and mild swelling. Diagnostic assessment was a right knee sprain. He was placed on a 10 day limited physical profile. Right knee pain was again noted in April 2005 when ambulating stairs. The Veteran was reportedly told 2 years prior that he may have had a partial tear of his right medial collateral ligament. Examination of the right knee was positive for palpable patellar crepitus with range of motion, tenderness to palpation of the medial aspect of the right knee, and a positive patella grind test. Diagnostic impression was retro patellar pain syndrome. He was placed on a limited physical profile for 2 weeks. Post-service VA treatment records show a report of right knee pain in March 2009. In July 2009, mild pain was noted on Valgus stress. Diagnostic impression was arthralgia. In January 2010, the Veteran complained of constant right knee pain descried as "tearing" in nature. Lachman's test was positive and mild pain was noted on Varus/Valgus stress. It was noted that x-ray of the right knee in July 2009 was negative for any acute process. Diagnostic impression was right knee arthralgia, rule out meniscal tear. A right knee MRI was ordered, however, it is unclear whether it was ever performed. As to the Veteran's claimed bilateral hearing loss and tinnitus disabilities, the Veteran contends that he has a current bilateral hearing loss disability that was incurred in or aggravated by service. He was reportedly told during service that he had decreased hearing, and it always took two tries for him to pass in-service audiological evaluations. He contends that his claimed tinnitus disability is caused or aggravated by his claimed bilateral hearing loss disability. In-service audiological treatment records are negative for any finding, diagnosis, or complaint of hearing loss or tinnitus in either ear; however, audiological evaluations dated in September 2001, June 2002, and in January and August 2003 contain notation that the Veteran was routinely exposed to noise as a food service specialist. Comparison of audiometric findings on puretone examinations dated at the time of the Veteran's August 2001 enlistment examination and at the time of the most recent in-service audiological evaluation in August 2003, suggest that there may have been an decreased shifts in hearing from 5 to 10 decibels in the right ear from 500 to 3000 Hertz and a 10 decibel decrease in the left ear at 6000 Hertz. Post-service VA treatment records show that in March 2009, the Veteran reported a decrease in hearing. In this case, it appears that the Veteran may have a current right knee, hearing loss, and tinnitus disabilities that may be etiologically related to injury, event, or illness during military service. VA is required to seek a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the current disability may be associated with the in-service event, injury or disease. 38 C.F.R. § 3.159(c)(4). See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the RO attempted to schedule the Veteran for VA knee and audiological examinations to determine the nature and etiology of his claimed disabilities; however, in October 2012 he failed to report to the scheduled examinations. In this regard, it appears that the Veteran's current contact information, to include his current personal mailing address, is unknown. A May 2012 RO report of contact shows that the Veteran's mother indicated that he had moved to a different location for work; however, he would receive any mail sent to her address for him. Notwithstanding the foregoing, however, there is nothing in the record to suggest that the Veteran received notice that he was scheduled for the aforementioned VA examinations, nor is there anything to suggest that he is aware that information pertaining to his claim is being sent to his mother's home address. Accordingly, the Veteran's correct contact information, to specifically include his own personal (emphasis added) mailing address or an address where he personally acknowledges that he will receive VA correspondence pertaining to this appeal, should be sought. Thereafter, he should be provided with one more opportunity to appear for VA examinations so that examinations for the claimed disabilities may be conducted and etiological opinions may be obtained. The Veteran is cautioned that the duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A lack of response from the Veteran after a specific request for information or evidence may cause the Board to draw a negative inference from his inaction. He is also hereby put on notice that failure to report to the scheduled examination, without good cause may well result in a denial of the claims. See 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. In light of the need to remand the claims for additional development, the Veteran should be provided with another opportunity to identify any outstanding treatment providers, VA and non-VA, who may have relevant records pertaining to the claimed disabilities dating since his discharge from active service in September 2005. In addition, all VA treatment records dated since July 2010, to include any records from the Temple VAMC and the Austin Outpatient Clinic, should be associated with the claims file. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should take appropriate steps to contact the Veteran and obtain and update his personal current mailing address and contact information. The record should be updated accordingly. 2. The RO/AMC should contact the NPRC and any other records repository deemed appropriate and request the Veteran's complete service personnel records, to specifically include separation reports of medical history and examination, if available. All development efforts to obtain records should be documented in the claims file. 3. Provide the Veteran with an opportunity to identify any outstanding treatment records relating to his claimed hearing loss, tinnitus, and right knee disabilities, and obtain any record so identified. To that end, provide the Veteran with Forms 21-4142. Also request any VA treatment records pertaining to the claimed disabilities from the VA Central Texas Health Care System, to include any records from the Temple VAMC and any VA facilities in Austin and Corpus Christie, Texas, dated prior to February 2009 and since July 2010. All attempts to secure this evidence must be documented in the claims folder. If, after making reasonable efforts to obtain any identified records the RO/AMC is unable to secure the same, the RO/AMC must notify the Veteran and his representative and (a) identify the specific records that are unable to be obtained; (b) briefly explain efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran and his representative must then be given an opportunity to respond. 4. After completion of the above development, to the extent possible, afford the Veteran a VA audiology examination by a VA examiner to determine: whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that any hearing loss and tinnitus is related to noise exposure, or other in-service event, injury or illness. The Veteran's file must be made available to the VA examiner, to include any relevant records in Virtual VA or other electronic claims file repository. The examiner should elicit from the Veteran a history of noise exposure or other injury or disease, and bilateral hearing loss and tinnitus symptoms, both during and after service. All indicated studies should be performed and all findings should be reported in detail. In offering opinions, the examiner must acknowledge and discuss the Veteran's report of a continuity of relevant symptoms since service, and any current relevant symptoms and diagnosis regarding the hearing loss and tinnitus conditions. In formulating the requested opinions, the VA examiner is asked to explain the medical principles relied on to reach the conclusion in the opinion and to discuss the other risk factors in the record for developing hearing loss, for example, in-service shifts indicative of a decrease in hearing and post-service occupational or recreational noise exposure. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. After completion of the development in paragraphs 1 through 3 above, to the extent possible, the Veteran should be afforded a VA examination to determine whether the Veteran has a current right knee disability that is etiologically related to any in-service event, injury or illness. The claims folder, to include any relevant documents in Virtual VA or other electronic claims file repository, must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the claims folder, the examiner should provide an opinion with respect to any knee disorder identified on examination and since the April 2008 claim for service connection was received, as to whether it is at least as likely as not (50 percent or better probability) that any currently diagnosed right knee disorder is etiologically related to the Veteran's active service. For purposes of the opinion, the examiner should assume that the Veteran is a reliable historian, and that his assertions of record as to in-service knee pain are credible. Attention is also invited to the service treatment records which show right knee injuries in May 2002 during a night land navigation training/test and in November 2003 when he slipped and fell on a wet tile floor. The supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide the required opinions, he or she should explain why the required opinions cannot be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 6. After the development requested has been completed, the RO/AMC must review the examination reports to ensure that they are in complete compliance with the directives of this remand. If the reports are deficient in any manner, the RO/AMC must implement corrective procedures at once. 7. After completing the requested actions and any additional development action deemed warranted, the RO/AMC must readjudicate the claims. If the benefit sought on appeal is not granted as to any claim remanded herein, the RO/AMC must furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review, if in order. The appellant 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). _________________________________________________ BETHANY L. BUCK 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).