Citation Nr: 1324921 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 12-13 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for left knee degenerative joint disease. 3. Entitlement to an initial rating in excess of 20 percent for lumbar strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1949 to March 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2013, the Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge. A copy of the transcript of that hearing is of record. The service connection issues on appeal were adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). The Board notes that the Veteran's request for a Board hearing to have been satisfied, but that should he express a desire for an additional hearing to address his lumbar spine disability that request will be granted. The Board notes that, although the March 2011 rating decision established service connection for lumbar strain and the Veteran's April 2011 notice of disagreement clearly expressed his desire to appeal the assigned 20 percent, the March 2012 statement of the case (SOC) misidentified the issue as entitlement to service connection. At his April 2013 hearing the Veteran, in essence, acknowledged that service connection for a lumbar strain was not an issue for appellate review and stated an increased rating claim had been filed. A review of the record, however, reveals that the March 2012 SOC clearly addressed the rating issue in the reasons and bases section and that the Veteran indicated his belief that a rating in excess of 20 percent was warranted in his April 2012 VA Form 9. Therefore, the Board finds the lumbar strain rating issue has been perfected 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 VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to notify and assist and of the information and evidence necessary to substantiate his initial service connection claims by correspondence dated in March 2010. The Board notes, however, that he was not provided notice of the laws and regulations pertinent to his appeal for an initial rating in excess of 20 percent for lumbar strain in the March 2012 SOC. The Veteran also submitted additional evidence pertinent to the issues on appeal in May 2013 without waiver of agency of original jurisdiction (AOJ) consideration of additional evidence. See 38 C.F.R. § 20.1304 (2012). VA's duty to assist requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159 (2012). For records not in the custody of a Federal department or agency, reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile; however, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records. 38 C.F.R. § 3.159(c)(2). VA has a duty to assist the veteran which includes conducting a thorough and contemporaneous medical examination. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). In this case, a review of the record reveals that at his personal hearing in April 2013 the Veteran reported that he had received pertinent VA treatment for his left knee in Grand Rapids, Michigan, in approximately 1992. The records associated with that treatment are not of record. The Veteran's service representative also identified the Veteran as a combat veteran; however, the Veteran has provided no information as to having engaged in actual combat during the Korean War and his available service records show he had sea service in the Atlantic Ocean and Mediterranean Sea without awards indicative of combat. A May 2013 private examination report noted that diagnoses of left knee pain and left ear hearing loss were established from 1950 during the Korean War and that the Veteran's thoracolumbar spine disability impacted his ability to work. No rationale was provided in support of the date of onset opinion. The Board also notes that a December 2010 VA examiner found the Veteran's left knee disability was likely due to aging and, in essence, that it could not be "absolutely" disproven that it was a residual of an in-service injury he sustained in October 1950. Nor did the examiner address the significance, if any, of X-ray studies of the left knee dated in February 2003 demonstrating mild degenerative changes. A January 2011 VA audiology examiner indicated, in essence, that pertinent ear evaluation or hearing tests associated with injuries the Veteran sustained in a horse accident 21 years earlier were not of record. In light of the evidence of record, the Board finds additional development is required prior to appellate review. Service records show he sustained a left knee injury in October 1950 and that he was treated for left ear fungus from August 1952 to December 1952. The Veteran's report of noise exposure aboard ship during active service is credible and consistent with the circumstances of his demonstrated service. Clarification, however, is required as to his actual combat experiences. He should also be provided an opportunity to submit additional information associated with his treatment for head trauma due to a horse accident. Appropriate efforts are required to obtain all available pertinent VA treatment records. 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 provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment pertinent to the issues on appeal. He should be specifically requested to provide the treatment records associated with his head trauma from a horse accident in approximately 1990 or to provide additional information concerning that treatment. After the Veteran has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder. Whether or not the Veteran responds, appropriate efforts must be taken to obtain pertinent VA treatment records, including such treatment at facilities in Grand Rapids, Michigan, in approximately 1992, unless further efforts would be futile. All efforts to procure records should be documented in the file. If records identified by the Veteran cannot be obtained he should be provided a notice to (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken by VA with respect to the claims; and (d) explain that he is ultimately responsible for providing the evidence. 2. Request that the Veteran provide additional information as to any actual combat experiences he had during active service. Appropriate action, as necessary, must be taken to verify any such combat experiences. 3. Upon receipt of any additional evidence pertinent to the bilateral hearing loss claim or upon a finding that further VA efforts would be futile, the Veteran's claims file should be reviewed by a VA audiologist for an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that a present hearing loss was incurred as a result of active service. All indicated examinations, tests, and studies are to be performed. A complete rationale for all opinions expressed should be set forth in the examination report. 4. Upon receipt of any additional evidence pertinent to the left knee claim or upon a finding that further VA efforts would be futile, the Veteran's claims file should be reviewed by a VA examiner for an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that a present left knee disability was incurred as a result of active service. The examiner must address the in-service injury sustained in October 1950 and the significance, if any, of X-ray studies of the left knee dated in February 2003 demonstrating mild degenerative changes. All indicated examinations, tests, and studies are to be performed. A complete rationale for all opinions expressed should be set forth in the examination report. 5. Schedule the Veteran for an appropriate VA examination to determine the nature and extent of his service-connected lumbar strain. All indicated tests and studies are to be performed. The examiner should identify all orthopedic and neurologic symptoms associated with the service-connected back disability, identify any physician-ordered periods of bed rest, and provide ranges of joint motion in degrees. Any additional functional limitation that is due to pain, excess motion, weakened movement, fatigability, or incoordination must be identified. An opinion must also be provided as to whether the Veteran's service-connected disability renders him unable to secure and maintain substantially gainful employment, to include describing the disabilities' functional impairment and how that impairment impacts physical and sedentary employment. The examiner must review the claims file and must note that review in the report. Findings should be provided based on the results of examination, the credible lay evidence of symptom manifestation, a review of the medical evidence of record, and sound medical principles. All examination findings, with the complete rationale for all opinions expressed, should be set forth in the examination report. 6. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all evidence of record. The lumbar strain rating issue should be readjudicated with appropriate notice to the Veteran of the applicable laws and regulations for such claims, to include the issue of entitlement to a total disability rating based upon individual unemployability (TDIU) and the assignment of separate rating(s) for any neurologic abnormalities associated with a service-connected spine disability. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review of all issues for which an appeal has been perfected, if in order. 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). _________________________________________________ Michael J. Skaltsounis Acting 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).