Citation Nr: 1327652 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 09-10 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a left knee disorder, to include arthritis. 2. Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in June 2007 and December 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Specifically, the June 2007 rating decision denied service connection for a left knee disorder (claimed as arthritis) and the December 2011 rating decision denied a compensable rating for bilateral hearing loss. The Board notes that the June 2007 rating decision also denied service connection for bilateral pes planus, bilateral hearing loss, and tinnitus and the Veteran entered a timely notice of disagreement as to such denials. However, in a March 2009 rating decision, the RO granted service connection for bilateral hearing loss and tinnitus, which was a full grant of the benefits sought on appeal with respect to such issues. Additionally, while a statement of the case pertaining to entitlement to service connection for bilateral pes planus was issued in March 2009, the Veteran did not enter a timely substantive appeal so as to perfect such issue. In this regard, he specifically limited his March 2009 substantive appeal to the issue of entitlement to service connection for a left knee disorder. Therefore, such issue is not properly before the Board. In his March 2009 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. A September 2012 letter informed the Veteran that his hearing was scheduled for October 2012. However, he failed to report for the scheduled hearing. Therefore, the Veteran's request for a Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal that have not been considered by the agency of original jurisdiction (AOJ). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Initially, with respect to the Veteran's claim for a compensable rating for his bilateral hearing loss, the Board notes that a rating decision issued in December 2011 denied such benefit. Thereafter, in January 2012, the Veteran entered a notice of disagreement as to the denial of such issue. When there has been an initial RO adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case. See 38 C.F.R. § 19.26. Thus, remand for issuance of a statement of the case on this issue is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). With respect to the Veteran's claim for service connection for a left knee disorder, he contends that he injured his knee playing football in service and that his current left knee arthritis developed due to that injury. Therefore, he claims that service connection is warranted for such disorder. An April 1969 service treatment record documents that the Veteran was treated for a sprained knee. In March 2007, the Veteran underwent a VA examination for the left knee. The VA examiner diagnosed the Veteran with residuals of left knee surgery and left knee osteoarthritis. However, the VA examiner did not provide a medical opinion on the etiology of the left knee disorder. Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the AOJ should obtain an addendum VA medical opinion that addresses the question of whether the Veteran's current left knee disorder is etiologically related to his military service, including his April 1969 football injury. The Board generally notes that a Social Security Administration (SSA) inquiry, dated in January 2003, documents that SSA considers the Veteran to be disabled as of October 2000. Additionally, a March 2004 decision on waiver of indebtedness documents that the Veteran receives SSA benefits. The record does not indicate that AOJ requested SSA records and SSA records are not associated with the claims file. As such, a remand is necessary to obtain any SSA determination, as well as any medical records relied upon concerning that claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). The Board also notes that the Veteran receives VA treatment through the Gainesville and Lake City, Florida, VA facilities. In this regard, the most recent treatment records addressing all medical conditions are dated in October 2009 and records addressing the Veteran's bilateral hearing loss are dated in January 2011. Therefore, while on remand, VA treatment records from the Gainesville and Lake City VA facility dated from October 2009 to the present should also be obtained for consideration in the appeal. Accordingly, the case is REMANDED for the following: 1. Provide the Veteran with a statement of the case regarding the issue of entitlement to a compensable rating for bilateral hearing loss. Please advise the Veteran of the time period in which to perfect his appeal. If the Veteran perfects his appeal of this issue in a timely fashion, then return the case to the Board for its review, as appropriate. 2. The AOJ should obtain VA treatment records from the Gainesville and Lake City VA facilities dated from October 2009 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. The AOJ should contact the SSA and obtain any administrative decisions and all medical records used in adjudicating the Veteran's award of disability benefits. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, the AOJ should issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After all the requested evidence is associated with the claims file, the claims file and a full copy of this REMAND must be made available to an appropriate medical professional to render a medical opinion. The clinician shall note in the examination report that the claims folder and the REMAND have been reviewed. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the file, to include the medical records and lay statements, the VA medical opinion provider should offer an opinion on the following: (A) Identify all current diagnoses pertaining to the left knee. (B) For each diagnosed disorder of the left knee, the examiner should offer an opinion as to whether it is at least as likely as not that such is related to his military service, to include his April 1969 left knee injury. (C) Did the Veteran manifest arthritis in the left knee within one year of his service discharge in August 1972? If so, what were the manifestations? An explanation for any opinion offered should be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case, which includes consideration of all evidence contained in the paper and Virtual VA claims files. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ A. JAEGER 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).