Citation Nr: 1327190 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-39 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a bilateral knee disability. 4. Entitlement to service connection for a bilateral ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Senior Counsel INTRODUCTION The Veteran served on active duty from May 1975 to January 1977. He also served in the National Guard from 1971 to 1975. This appeal arose before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to the benefit sought. The Veteran testified before the undersigned via Video Conference hearing in May 2011. A transcript of this proceeding has been included in the claims folder. 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 After careful review of the Veteran's claims folder and his Virtual VA eFolder, the Board finds that a remand is necessary. While the delay is regrettable, it is determined that additional development is needed in order to afford the Veteran full consideration of his claims. As noted above, the Veteran served in the Army National Guard from 1971 to 1975. The only medical records from this period are his June 1971 entrance and July 1971 separation examinations. Given the Veteran's assertions that he injured his knees and ankles during both his Army and his National Guard service, it is imperative that an additional attempt to obtain all National Guard treatment records be made. See 38 C.F.R. § 3.159(c)(2) (2012). The Veteran is also in receipt of Social Security Administration (SSA) benefits, apparently for multiple joint degenerative joint disease (DJD). While a CD was submitted to VA, the Board is unable to read this disc. Because the Veteran seeks service connection for injury residuals to the knees and ankles, to include DJD, a review of the SSA records is essential in deciding his claims. Therefore, the records contained on the SSA disc must either be printed for inclusion in the claims folder, or be scanned into the Veteran's Virtual VA eFolder. The Board has also determined that additional examinations would be helpful in this case. See 38 C.F.R. § 3.159(c)(4) (2012). The Veteran provided additional information about his noise exposure in service during his May 2011 hearing testimony, which has not been considered by any examiner. This is particularly important since the July 2009 VA examiner had opined that the noise the Veteran experienced in service was not sufficient to result in hearing loss or tinnitus. In regard to the knee and ankle disorders, a review of the April 2009 examination indicates that the examiner had not reviewed any records other than VA records contained in the CPRS file; review of private records was specifically denied and it was further indicated that no other records were reviewed. As a consequence, the opinion rendered did not take into consideration all the records available, to include the SSA records, prior to rendering an etiology opinion. Such a review is essential in this case since he was awarded SSA benefits due to multiple joint DJD. Significantly, the Board also notes that the April 2009 examiner, while only examining the left ankle, nevertheless rendered an opinion concerning the etiology of the DJD in the right ankle and both knees. Since these joints were not part of the examination, this opinion is based upon a clearly inadequate examination. The Board must ensure that any examination, once it is undertaken, is adequate for rating purposes. If it is not, another examination must be conducted. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following action: 1. Contact the relevant Adjutant General's Office and ascertain whether there are any additional treatment records from the Veteran's period of service with the Army National Guard from 1971 to 1975. All attempts to obtain these records must be documented for inclusion in the claims folder. If the records cannot be located, a Formal Memorandum of Unavailability must be prepared for inclusion in the claims folder. 2. The treatment records contained on the SSA CD must either be printed for inclusion in the claims folder or scanned into the Veteran's Virtual VA eFolder. 3. Afford the Veteran a complete audiological examination in order to provide an etiological opinion concerning his claimed hearing loss and tinnitus disabilities. The entire claims folder, to include the Veteran's SSA records, and any records contained in the Virtual VA eFolder, must be reviewed in conjunction with the examination. The examiner must specifically take into consideration the Veteran's May 2011 hearing testimony concerning his in-service and post-service noise exposure. All special testing deemed necessary must be conducted. A complete rationale for any opinions proffered must be provided. If an opinion cannot be made without resort to mere speculation, this must also be fully explained. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Afford the Veteran a complete orthopedic examination of his knees and ankles in order to provide an opinion as to the etiology of these disabilities. The entire claims folder, to include the Veteran's SSA records, and any records contained in the Virtual VA eFolder, must be reviewed in conjunction with the examination. The examiner must specifically take into consideration the Veteran's May 2011 hearing testimony concerning the onset of his knee and ankle disorders. All special testing deemed necessary must be conducted. A complete rationale for any opinions proffered must be provided. If an opinion cannot be made without resort to mere speculation, this must also be fully explained. See Jones, supra. 5. The Veteran must be advised of the importance of reporting to the scheduled examinations and of the possible adverse consequences of failing to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 6. The RO/AMC must ensure that all the requested development is substantially complied with before returning the case to the Board. If any development is not sufficiently complied with, the RO/AMC must take all corrective action to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). 7. Once the above-requested development has been completed, the Veteran and his representative must be provided a Supplemental Statement of the Case (SSOC) and an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).