Citation Nr: 1337785 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 12-00 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a respiratory disorder, claimed as shortness of breath and chest pain, to include a residual of exposure to asbestos and mustard gas. 3. Entitlement to service connection for hypertension, to include a residual of exposure mustard gas. 4. Entitlement to service connection for a heart condition. 5. Entitlement to service connection for a right knee disorder. 6. Entitlement to service connection for a left ankle disorder. 7. Entitlement to service connection for the residuals of frostbite of both feet. 8. Entitlement to service connection for trench mouth with loss of teeth. 9. Entitlement to special monthly compensation based on the need for aid and attendance or being housebound. REPRESENTATION Appellant represented by: Colin E. Kemmerly, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from July 1955 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran resides in the jurisdiction of the VA RO in Jackson, Mississippi. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). The appeal is remanded to the RO. REMAND The National Personnel Records Center (NPRC) reports that the Veteran's service treatment records have been destroyed by fire and are unavailable. VA has a heightened duty to assist when service medical records are not available. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Veteran has indicated that was treated for his claimed disabilities at the VA Medical Center (VAMC) in Chicago in the past. If they exist, these records must be obtained and placed in the record. Records generated by VA are constructively included within the record. If records of VA treatment are material to the issue on appeal and are not included within the claims folder, a remand is necessary to acquire such VA records. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Veteran has claims for service connection which allege exposure to mustard gas during service. The RO received a negative response related to mustard gas exposure in July 2010. However, the Veteran provided additional information related to the dates and locations of the claimed exposure which was received by VA in August 2010. The record does not reflect that an attempt to verify the Veteran's claimed mustard gas exposure was conducted after this additional information was received. T Compensation and Pension examinations are necessary with respect to the Veteran's claimed disabilities. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Specifically request that he provide information on the dates he claims he was treated at VAMC Chicago. Also request he provide a complete employment history from his separation from service to the presence. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Specifically, obtain the Veteran's treatment records from VAMC Chicago. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his attorney must then be given an opportunity to respond. 2. Conduct the required development related to the Veteran's claims of mustard gas exposure pursuant to M21-1MR. IV.ii.1.F.22. c, d. using the information submitted by the Veteran in August 2010. Document the results of this development in the record. 3. The Veteran must be afforded an appropriate VA examination to determine whether bilateral hearing loss is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements of decreased hearing since service and consideration of his artillery noise exposure during service, the examiner must provide an opinion as to whether it is at least as likely as not that any degree of the Veteran's current bilateral hearing loss is related to his active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. The Veteran must be afforded the appropriate VA examination to determine whether any respiratory disorder found is related to his military service. All pertinent symptomatology of shortness of breath and chest pains and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the December 2007 private chest x-ray report showing fibrotic changes, and the documented history of smoking, the examiner indicate the following: * Does the Veteran have any current respiratory disorder manifested by shortness of breath and chest pain, and if so what is the current diagnosis. * Whether any currently diagnosed respiratory disorder is related to the Veteran's active duty service, to include his claimed asbestos and mustard gas exposure. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 5. The Veteran must be afforded the appropriate VA examination to determine whether any hypertension and/or heart disorder found is related to his military service. All pertinent symptomatology must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner indicate the following whether any current hypertension and/or heart disorder is related to the Veteran's active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 6. The Veteran must be afforded the appropriate VA Joints examination to determine whether any right knee or left ankle disorder found is related to his military service. All pertinent symptomatology must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. X-ray examination of both knees and both ankles should be conducted. The examiner, or examining radiologist, must comment on whether any abnormalities found are consistent with remote prior injury in service over 50 years ago, or whether any abnormalities found are symmetrical and associated with the aging process. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements of injury during service, the examiner indicate the following: * Does the Veteran have any current right knee and/or left ankle disorder. * Whether any currently diagnosed right knee and/or left ankle disorder is related to the Veteran's active duty service, to include his claimed injuries. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 7. The Veteran must be afforded the appropriate VA cold injury protocol examination to determine whether any residuals of frostbite of the feet found is related to his military service. All pertinent symptomatology must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements of cold injury during service, the examiner indicate the following: * Does the Veteran have any residuals disorder caused by cold injury to the feet. * Whether any currently diagnosed foot disorder is related to the Veteran's active duty service, to include his claimed cold injury. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 8. The Veteran must be afforded the appropriate dental examination to determine whether any disorder manifested by trench mouth with loss of teeth is present and related to his military service. All pertinent symptomatology must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner indicate whether any current tooth loss is the result of "trench mouth" during active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 9. The Veteran must be afforded the appropriate examination for aid and attendance and housebound status. All pertinent symptomatology must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements of injury during service, the examiner indicate whether the Veteran requires aid and attendance or his housebound. 10. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 11. The medical reports must be reviewed to ensure that they are in complete compliance with the directives of this remand. If a report is deficient in any manner, corrective procedures must be implemented. 12. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be readjudicated. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his attorney. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).