Citation Nr: 1334178 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-29 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, PA THE ISSUES 1. Whether the February 2013 Board of Veterans' Appeals decision denying service connection for bilateral hearing loss and tinnitus should be vacated. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection a left knee disorder, to include shell fragment wound (SFW) of the left knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from September 1959 to August 1961. This case comes before the Board of Veterans' Appeals (Board) on appeal from January 2009 and November 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In August 2011, the Veteran testified at a hearing before the RO. In January 2012, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). Transcripts of both hearing are associated with the claims folder. In January 2012, the Veteran submitted a waiver of RO review of new evidence submitted at his video-conference hearing. In September 2012, the Board referred this case to the Veterans Health Administration (VHA) to obtain an expert medical opinion. The VHA opinion was received in November 2012. In November 2012, the Board provided a copy of this opinion to the Veteran and his representative with a 60-day period of time to provide additional evidence and/or argument in this case. In February 2013, the Board issued a decision denying service connection for bilateral hearing loss and tinnitus and remanding a claim for service connection for shell fragment wound (SFW) of the left knee. In August 2013, the Veteran's representative filed a motion to vacate the February 2013 decision denying service connection for bilateral hearing loss and tinnitus. The issues of entitlement to service connection for bilateral hearing loss, tinnitus, and SFW of the left knee are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. On February 27, 2013, the Board issued a decision denying service connection for bilateral hearing loss and tinnitus. 2. Evidence pertinent to the appeal decided in the February 27, 2013, Board decision was in VA's possession at the time of the decision but was not considered by the Board. CONCLUSION OF LAW The criteria for vacating the February 27, 2013 Board decision with regard to the claims for service connection for bilateral hearing loss and tinnitus, have been met. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2013). VACATUR The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2013). The failure to allow the Veteran to have relevant evidence considered by the agency of original jurisdiction (AOJ), and have it issue a supplemental statement of the case considering such evidence, is an example of a circumstance where denial of due process of the law will be conceded. 38 C.F.R. § 20.904(a)(2). As previously noted, this matter was before the Board in February 2013, at which time the Board issued a decision on the Veteran's claims for service connection for bilateral hearing loss and tinnitus. Prior to the February 2013 Board decision, the Board requested a medical opinion addressing the Veteran's claims. In a November 2012 letter, the Board informed the Veteran that an outside medical opinion had been obtained and that the Veteran had 60 days to submit additional evidence. The letter also informed the Veteran that he had the right to have the newly submitted evidence considered by the AOJ for review and issuance of a supplemental statement of the case, or that the Veteran could waive that right and proceed with Board adjudication. On December 20, 2012, the AOJ received new evidence from the Veteran, in the form of a new private medical opinion addressing his bilateral hearing loss and tinnitus claims. The AOJ received that evidence within 60 days of the November 2012 Board letter, and the Veteran did not waive AOJ consideration of that evidence. Pursuant to 38 C.F.R. § 20.1304 (c), the Board must refer pertinent evidence to the AOJ for review, unless the appellant waives this procedural right or the Board determines that the Veteran's claim can be fully allowed. As the Veteran has not waived AOJ consideration of this pertinent, December 2012 private medical opinion (which addresses the claims for both service connection for bilateral hearing loss and tinnitus), such evidence must be considered by the AOJ. Thus, the Board finds that the Veteran was denied due process of law. Accordingly, the Board's February 2013 decision regarding service connection for bilateral hearing loss and tinnitus should be vacated on these grounds. The Board must therefore vacate that decision and enter a new decision addressing the claims on appeal. ORDER The February 27, 2013 Board decision that denied service connection for bilateral hearing loss and tinnitus is vacated. REMAND As above, with regard to the bilateral hearing loss and tinnitus issues, in his August 2013 Motion to Vacate, the Veteran indicated that he did not waive AOJ consideration of his newly submitted medical evidence. Specifically, he did not waive AOJ consideration of a December 2012 medical record addressing the Veteran's hearing loss and tinnitus that he submitted during the 60 day period he was allowed to submit additional evidence. The evidence is pertinent to the claims for service connection for bilateral hearing loss and tinnitus. Therefore, this additional evidence must be considered by the RO before further appellate review may be undertaken. See 38 C.F.R. §§ 19.31, 19.37, 20.1304 (2013). With regard to the SFW of the left knee issue, as was noted in the previous February 2013 remand, an October 2011 RO rating decision awarded service connection for residuals of SFW of the right knee with degenerative joint disease. This claim was based upon a radiographic finding that the Veteran had a retained metallic object in the area of his right knee which he claimed resulted from a barrel explosion in service. That issue is no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). However, the Veteran also perfected an appeal to the RO on an issue of service connection for residuals of SFW of the left knee. During the August 2011 RO hearing, the Veteran testified to incurring an SFW to the right knee. His testimony regarding his left knee was ambiguous other than he intended to appeal an issue of SFW of both knees. See Transcript of August 2011 RO hearing, p. 5. The Veteran never identified any specific injury or disability of the left knee associated with service. Unfortunately, the RO did not elicit any further information. The Board indicated in its February 2013 remand that it could not discern from the Veteran whether he claims a disability of the left knee related to an event in service and, if so, the nature of that disability. His testimony in August 2011 did not allege that an SFW actually penetrated his left knee. The Board found that clarification from the Veteran was required as to whether he intended to pursue a service connection claim for SFW residuals of the left knee and, if so, to describe the nature of the injury and proof of current residuals. Pursuant to the February 2013 Board remand, a letter was sent to the Veteran in March 2013 asking him to clarify whether he intended to pursue a service connection claim for SFW residuals of the left knee and, if so, to describe the nature of the injury and proof of current residuals. A subsequent March 2013 report of contact shows that the Veteran received the letter, did not want to withdraw his claim, and did not have any more evidence to submit. During the course of this appeal, the Veteran was afforded a VA knee examination in September 2011. This examination report shows normal range of motion for both the right and left knees. The examination report shows that the Veteran had degenerative or traumatic arthritis of the right knee and contains an opinion that the Veteran's right knee disorder is related to the Veteran's military service. Unfortunately, the examination report is silent as to any findings with regard to a disability of the left knee. Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the appellant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the September 2011 VA knees examination report does not indicate whether the Veteran has a current left knee disorder and, if so, whether the left knee disorder is related to the Veteran's military service or a service-connected disability, it does not provide a sufficient basis for the Board to reach a decision. Thus, on remand, the Veteran should be afforded a new VA examination which adequately addresses the matter of service connection for a left knee disability, specifically, whether the Veteran has a current left knee disorder and, if so, whether it is related to his military service. Moreover, it appears that there may be outstanding VA treatment records. A review of the claims file shows that the Veteran sought VA treatment from January 2003 through March 2013. Given the need to remand for other reasons, the AOJ should also attempt to obtain any outstanding VA treatment records, specifically from March 2013 to the present. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran of the necessity of obtaining treatment records regarding his claimed left knee disorder and inform him that he may submit these records himself or authorize VA to obtain them on his behalf. After securing any necessary authorization from him, obtain the identified records. 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). 2. Request all outstanding VA treatment records dated from March 2013 through 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. After all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange for the Veteran to be afforded a VA joints examination to determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed left knee disorder is related to his military service, to include as secondary or aggravated by a service-connected disorder (specifically, the left knee disorder). a. Does the Veteran have a current disorder of the left knee? b. Did the Veteran's left knee disorder have its onset in service; or, is it otherwise related to the Veteran's active military service? c. Did the Veteran's service-connected right knee disorder cause the Veteran to develop a left knee disorder? d. Does the Veteran's service-connected right knee disorder cause an aggravation (permanent worsening) of either the Veteran's left knee disorder beyond its natural progress? If so, the examiner should identify the clinical signs and manifestations of his orthopedic disorders which establish: (i) the baseline level of severity of his left knee disorder before the onset of aggravation (permanent worsening); (ii) the onset of aggravation (permanent worsening) of his left knee; and (ii) the current level of severity of his left knee disorder at (or after) the onset of aggravation (permanent worsening). e. Describe the effect of the Veteran's service-connected right knee disorder to include any newly claimed disorder which the examiner relates to the Veteran's military service on either a direct, secondary, and/or aggravation basis on the Veteran's ability to obtain and maintain gainful employment. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is not able to provide an opinion, he or she should explain why. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. Readjudicate the Veteran's claims for service connection for bilateral hearing loss and tinnitus. 5. Review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 6. After the development requested above has been completed, readjudicate the appellant's claims. If the benefits sought continue to be denied, the AOJ should issue a supplemental statement of the case (SSOC). Thereafter, if appropriate, the case should be returned 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 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. 2013). ______________________________________________ MARJORIE A. AUER 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) (2013).