Citation Nr: 1331171 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-10 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). 4. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active service from December 1962 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for a low back disability, a bilateral knee disability, and a psychiatric disability, to include PTSD; and granted service connection for bilateral hearing loss and assigned a 0 percent rating, effective July 30, 2008. The Veteran and his spouse testified at a personal hearing before the undersigned Veterans Law Judge at the RO in April 2012. A transcript of the hearing is of record. At the hearing, the Veteran submitted additional evidence with a waiver of RO review. 38 C.F.R. § 20.1304 (2012). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND At the April 2012 hearing, the Veteran testified that he recalled additional details regarding his stressor when a swimmer was crushed. Specifically, he stated that the incident took place off the coast of Spain rather than the coast of France and it occurred between October 1964 and March 1965. Previously, it was reported by the United States Army and Joint Services Records Research Center (JSRRC) that the incident off the coast of France was not verified in the records. Since the Veteran has provided additional detail and different dates, the Board finds that appropriate measures should be made to attempt to verify the alleged incident through the JSRRC. The Veteran and his representative also asserted at the hearing that the August 2010 VA examination was inadequate because the examiner did not review the claims folder. On page one of the examination report, it was noted that the Veteran's "Claim Folder and VA Computerized Patient Record System were reviewed." However, on page three of the examination report it was noted that the Veteran's Claim Folder was not provided for review." In light of that inconsistency, the Board finds that another VA examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). Upon VA examination in April 2009, the examiner, a nurse practitioner, concluded that it was less likely that the Veteran's currently manifest low back and knee disabilities had their onset in service or were caused by carrying a 60-pound pack in service. In contrast, the Veteran's spouse, a licensed practical nurse, testified that the Veteran's currently manifest low back and knee disorders were due to carrying a 60-pound pack in service. In light of the conflicting opinions, the Board finds that the medical evidence is not sufficient upon which to decide these claims. Therefore, another examination is needed. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). Finally, at the April 2012 hearing, the Veteran also testified that his bilateral hearing loss disability had worsened since his August 2010 VA examination and requested a new examination. Due to the passage of time and the Veteran's assertions, the Board finds that additional development is warranted to determine the current nature, extent, severity, and manifestations of his service-connected hearing loss disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The Veteran is advised that failure to report for a VA examination, without good cause, may have adverse consequences on a claim. 38 C.F.R. § 3.655 (2012). Upon remand, ongoing VA medical records and any additional evidence to support the claim should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain VA medical records pertaining to treatment or evaluation of the Veteran's psychiatric disability, low back disability, bilateral knee disability, and bilateral hearing loss from August 2010 to the present and associate them with the claims file. 2. Contact the JSRRC and request any existing information related to the injury or death of a fellow serviceman who was crushed by a boat while the Veteran was stationed on the USS Cambria off the coast of Spain from October 1964 through March 1965 that would serve to verify the alleged incident. 3. Thereafter, schedule the Veteran for a VA examination with a psychiatrist. The examiner must review the claims file and must note that review in the report. All studies or tests deemed necessary should be conducted. After a thorough review of the Veteran's service treatment records, and a full clinical evaluation, the examiner should answer the following questions and provide a rationale for all conclusions: (a) Provide a full multi-axial diagnosis pursuant to DSM-IV and state whether or not a diagnosis of PTSD is appropriate. State whether or not each criterion for a diagnosis of PTSD is met. (b) Is at least as likely as not (50 percent probability or greater) that any current psychiatric disability began in or is otherwise related to the Veteran's service? (c) If PTSD is present, is at least as likely as not (50 percent probability or greater) that the disability is linked to an independently verified in-service stressor? 4. Schedule the Veteran for a VA joints examination with a medical doctor. The examiner must review the claims file and must note that review in the report. All studies or tests deemed necessary should be conducted. After a thorough review of the Veteran's records and a full clinical evaluation, the examiner should provide the following opinions with a complete rationale: (a) Is it at least as likely as not (50 percent probability or greater) that any current right and left knee disabilities are due to service, including carrying a 60-pound pack? (b) Is it at least as likely as not (50 percent probability or greater) that any current low back disability is due to service, including carrying a 60-pound pack? 5. Schedule the Veteran for a VA audiology examination to ascertain the current severity of bilateral hearing loss. The examiner must review the claim file and must note that review in the report. The indicated findings must be specified in decibels at the 500, 1000, 2000, 3000, and 4000 Hertz levels, and speech discrimination ability using the Maryland CNC word list must be indicated for each ear. 6. Then readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The appellant has the right to submit additional evidence and argument on the 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).