Citation Nr: 1327819 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 12-29 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for headaches, including as secondary to service-connected tinnitus. 2. Entitlement to service connection for right knee condition. 3. Entitlement to service connection for left knee condition. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran had active service from August 1971 to August 1975, as well as a period of active duty for training (ACDUTRA) from September 1962 to March 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In June 2013, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge. Subsequent to the hearing, the Veteran submitted additional evidence with a waiver of RO consideration. 38 C.F.R. § 20.1304 (2012). Therefore, the Board may properly consider such newly received evidence. In addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. The issues of higher ratings for hearing loss and tinnitus and entitlement to service connection for dizzy spells have been raised by the record. Specifically, in a May 2010 submission, the Veteran explicitly stated that his hearing loss and tinnitus had worsened and implicitly raised a claim of service connection for dizzy spells. These claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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, D.C. VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for headaches and for right and left knee disabilities. For the reasons that follow, his claims must be remanded. At his June 2013 hearing, the Veteran explicitly claimed that his headaches were secondary to his service-connected tinnitus. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board may order an examination when the record shows that the Veteran has a current disability, indicates that this disability may be associated with the Veteran's active service, and does not contain sufficient evidence for the Board to make a decision on the issue. 38 U.S.C.A. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran testified at hearing that his headaches are caused by the ringing in his ears and a May 2013 letter from Dr. F states that he is being prescribed headache medication by a neurologist. Service treatment records (STRs) contain a November 1962 report of a headache. Thus there is evidence of a current disability and an indication that it may be associated with active service and/or a service-connected disability, but the record does not contain sufficient evidence for the Board to make a decision on the issue. Accordingly, the Board finds a remand is necessary to obtain a VA examination with medical opinion as to whether the current headaches are related to service, including as secondary to service-connected tinnitus. Moreover, the Veteran has not been provided with Veterans Claims Assistance Act of 2000 (VCAA) notice regarding the secondary aspect of his service connection claim for headaches. As the Veteran is service-connected for tinnitus and has not been provided with VCAA notice that expressly addresses the requirements for secondary service connection, such notice should be provided on remand. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he injured his knees while he was on a temporary active duty assignment (TDY) at an air base in Turkey in 1999. The Veteran's service personnel records have not been associated with the claims file. The two DD-214 Forms of record reflect ACDUTRA with the U. S. Marine Corps from September 1962 to March 1963, and active duty with the U. S. Air Force from August 1971 to August 1975. STRs after July 1991 are unavailable. The only information of record regarding the Veteran's duty status after 1975 is a document titled "Veterans Information Solution" that states that the Veteran has the following military history: Air Force Reserve: 12/8/66 to 2/28/86 Air Force National Guard: 3/1/86 to 5/15/89 Air Force Reserve retiree: 5/16/89 to 9/30/03 Air Force Retired: 9/17/03. Given the unclear duty status of the Veteran at the time of the claimed injury to the knees, a remand is necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. On remand, the RO must attempt to obtain the Veteran's service personnel records dated after August 1975 from all appropriate entities, to include the Air Force Reserve Personnel Center in Denver, Colorado (AFRPC), the National Personnel Records Center (NPRC), and the National Guard Bureau. The Veteran should be asked if he deployed to Turkey in 1999 with a unit or individually. If he deployed with a unit, he should be asked to indicate the circumstances of the deployment and to identify the unit with which he served.. Accordingly, the case is REMANDED for the following actions: (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. Ask the Veteran whether he deployed to Turkey in 1999 with a unit or individually. He should also be requested to state the circumstances of the deployment, the means of transport to Turkey and to identify the unit(s) with which he served. 2. Then, obtain the Veteran's Official Military Personnel File (OMPF) and any relevant individual and/or unit records from all appropriate entities, to include the AFRPC, National Guard Bureau, JSRRC, and NPRC. 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, and document such 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. Send the Veteran a VCAA notice letter regarding the evidence and information necessary to substantiate his claim of entitlement to service connection for headaches, to include as secondary to his service-connected tinnitus, in accordance with 38 C.F.R. § 3.310. Ask the Veteran to identify any providers who have treated him for headaches and request that he provide, or authorize VA to obtain, any outstanding records. All efforts made should be documented in the claims file. 4. Notify the Veteran that he may submit lay statements from himself, as well as from individuals such as friends and/or family members, who have first-hand knowledge of the onset and/or recurrence of his headaches and/or knee symptoms during and/or since service. He should be provided an appropriate amount of time to submit this lay evidence. 5. After associating any outstanding records with the claims file, schedule the Veteran for a VA examination to determine the nature, extent, onset and etiology of any headache disability found to be present. The claims file should be reviewed by the examiner in conjunction with the examination. Any necessary tests should be conducted. After examining the Veteran and reviewing the claims file, the examiner should: a). Identify all headache disabilities found to be present; b) State whether it is at least as likely as not that the Veteran's headaches: 1) are related to service, including the headache noted in the service treatment records, or 2) are caused, at least in part, by the Veteran's service-connected tinnitus, or 3) are aggravated, at least in part, by the Veteran's service-connected tinnitus? The examiner should consider the Veteran's lay statements regarding the onset of his headaches. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 6. Then readjudicate the claims. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on 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). _________________________________________________ STEVEN D. REISS 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).