Citation Nr: 1323391 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 10-25 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a low back condition. 3. Entitlement to service connection for a right hand condition. 4. Entitlement to service connection for a left hand condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, appellant's wife, and appellant's son ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from December 1950 to November 1953. This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida, which denied the benefits sought on appeal. 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 A remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The Veteran claims his military service led to bilateral hearing loss, a low back condition, a left hand condition, and a right hand condition. The Veteran testified at a June 2013 Board hearing that he experienced acoustic trauma in the course of performing his duties with the 517th Armored Field Artillery Battalion. He stated that his duties included operating a floating tank with a Howitzer attached to it. The Veteran testified that he noticed hearing loss immediately following incidents when the Howitzer backfired. He stated his ears felt clogged and then would unclog. The Veteran also stated he heard buzzing and ringing and felt leakage. The Veteran testified he sought treatment but was told his ears would clear out on their own. Regarding his low back and bilateral hand conditions, the Veteran testified that while he was stationed near the Russian border, a tree fell on a tank he was driving and injured his hands. The Veteran stated he also injured his back during his incident when he was pushed back into a Howitzer from the impact. Specifically, the Veteran stated the left side of his low back hit a spike located at the back of the Howitzer. He stated he was transported to the Frankfurt General Hospital for treatment. At the outset, it appears there are records absent in the record. The Veteran testified at the June 2013 Board hearing that he is currently receiving treatment at the Vet Center in Fort Lauderdale, Florida, and from a private doctor, Dr. Torres. The Board notes that the only post-service treatment records within the claims file include a September 2009 VA audiological examination and a March 2013 VA treatment record. As such, prior to adjudication, the RO should obtain and associate with the claims file all outstanding, pertinent VA medical records. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain from the Vet Center, as well as any other VA medical facility the Veteran is currently receiving treatment, all outstanding, pertinent records of evaluation and/or treatment of the Veteran following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. The Veteran also testified that he is currently receiving treatment from a private doctor, Dr. Torres. These records must be obtained and associated with the record as well. 38 U.S.C.A. § 5103A(c) (West 2002). The Board further notes the Veteran has not been afforded VA examinations for his low back condition and his bilateral hand condition. Given the Veteran's testimony of his injuries during service, the absence of service treatment records, and the lack of post-service treatment records, the Veteran should undergo a VA examination to clarify any diagnoses and the etiology of the disabilities. 38 C.F.R. § 3.159(c)(4) (2012); Green v. Derwinski, 1 Vet. App. 121 (1991) (duty to assist may include conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one). As stated earlier, the Veteran was previously afforded a VA audiological examination in September 2009. However, given the absence of the post-service treatment records when he underwent the VA examination, the new records may raise the possibility that the Veteran's hearing loss is related to service, the Board finds that a remand of this claim is necessary in order for the RO to obtain another VA medical opinion that addresses the new evidence in this appeal. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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. Contact all appropriate VA medical facilities, and obtain and associate with the claims file all outstanding records of treatment. In addition, obtain all private treatment records which have not been obtained already. These records should include those identified by the Veteran at the June 2013 Board hearing (namely, treatment records from Dr. Torres). The AMC should contact the Veteran and request that he provide a completed release form (VA Form 21- 4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated him for his claimed conditions. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran and his representative. The notice must contain the identity of the records the VA was unable to obtain, an explanation of the efforts the VA made to obtain the records, a description of any further action the VA will take regarding the claim and a notice that the Veteran is ultimately responsible for providing the evidence. The AMC should also inform the Veteran that he can also provide alternative forms of evidence. 2. Once all outstanding records are obtained and associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his claimed bilateral hearing loss. The examiner should state whether the Veteran has bilateral hearing loss for VA purposes. Next, the examiner is requested to provide an opinion as to whether it is as least as likely as not (50 percent or greater probability) that any diagnosed hearing loss, if such is found, is etiologically related to his period of active service, to include conceded in-service noise exposure. In doing so, the examiner should acknowledge and discuss the Veteran's lay statements and the findings of the VA audiologist in the September 2009 VA examination report. All testing deemed necessary by the examiner should be performed and the results reported in detail. The rationale for all opinions expressed should be provided. The claims folder must be available for review by the examiner in conjunction with the examination and this fact should be acknowledged in the report. 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. Once all outstanding records are obtained and associated with the claims file, the Veteran should be afforded a new VA spine examination, by an appropriate examiner, to determine the nature and etiology of his low back condition. The Veteran's claims file must be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination and report such review in the report. All tests and studies deemed necessary by the examiner should be performed and all findings must be reported in detail. The examiner is requested to diagnose all current back disorders, review all pertinent records associated with the claims file and for each diagnosed disorder, offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the currently diagnosed low back condition is causally or etiologically related service. In providing this opinion, the examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Once all outstanding records are obtained and associated with the claims file, the Veteran should be afforded a new VA examination, by an appropriate examiner, to determine the nature and etiology of his bilateral hand conditions. The Veteran's claims file must be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination and report such review in the report. All tests and studies deemed necessary by the examiner should be performed and all findings must be reported in detail. The examiner is requested to diagnose all current bilateral hand conditions, review all pertinent records associated with the claims file and for each diagnosed disorder, offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the currently diagnosed bilateral hand condition is causally or etiologically related service. In providing this opinion, the examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) 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). _________________________________________________ WAYNE M. BRAEUER 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).