Citation Nr: 1338264 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 13-11 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for disability of the right leg. 2. Entitlement to service connection for disability of the right hip as secondary to disability of the right leg. 3. Entitlement to a compensable initial evaluation for left ear hearing loss. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1975 to December 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The issues of entitlement to service connection for right ear hearing loss as secondary to service-connected left ear hearing loss, and service connection for tinnitus as secondary to service-connected left hearing loss, appear to be raised by electronic records. The record before the Board does not reflect that these claims have been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over these claims and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claims. See 38 C.F.R. § 19.9 (2012). Initially, the Board notes that updated VA treatment records should be obtained and associated with the record. The Veteran stated that he received treatment from the St. Louis VA Medical Center (VAMC) and the Poplar Bluff VAMC, including the community based outpatient clinics of Cape Girardeau and Sikeston. A review of the claims file reveals that in a February 2013 rating decision, VA treatment records regarding the Veteran from the Popular Bluff VAMC were considered. However, the most recent Poplar Bluff VAMC records associated with the claims file are dated February 2011, and the most recent St. Louis VAMC records are dated December 2010. Thus, on remand all relevant VA treatment records should be obtained, specifically from the Poplar Bluff VAMC and any associated outpatient clinics, since February 2011, and the St. Louis VAMC and any associated outpatient clinic, since December 2010, and associated with the claims file. See 38 U.S.C.A. § 5103A(c) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(2) (2013). See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). VA will provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but insufficient competent medical evidence on file for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran has not yet been afforded a VA examination in connection with his disability of the right leg claim. A May 1977 service treatment record (STR) indicated the Veteran sustained an abrasion to his right leg and right thigh, but subsequent STRs indicated that this injury may have been sustained on the left leg. However, an April 1979 STR indicated the Veteran had an abrasion of the right leg and early cellulitis. The Veteran contended, in his November 2011 claim, that when he was loading vehicles on board the USS San Bernardino, he jumped out of a truck bed, fell and broke his right leg. Although the Veteran's STRs are silent for a broken right leg, the Veteran is competent to report factual matters of which he has first-hand knowledge, such as breaking his right leg. See Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran's seemingly credible statements lend support to the notion that a right leg injury actually occurred. Additionally, an August 1978 STR referenced an auto accident with multiple abrasions; however, this record specifically mentioned a cerebral concussion but was silent as to any issue with the right leg. Finally, while the evidence of record primarily shows a current disability related to the Veteran's right hip, there is evidence of a disability related to the Veteran's right leg as well. Specifically, a February 2011 private treatment record noted mild shortening of the right leg. A November 2010 VA treatment record noted a moderate to severe limp. Finally, the Veteran has stated that since the incident, described above, when he fell out of the truck and broke his leg, he has experienced pain in his leg and problems with his gait. Thus, there is evidence of persistent or recurrent symptoms of a disability pertaining to the right leg. See 38 C.F.R. § 3.159(c)(4)(i)(A). Given that there is evidence of an in-service injury, evidence that the Veteran has recurrent symptoms for a disability of his right leg, and that there is at least an indication that the two may be linked, the Board finds that the claim must be remanded to allow for a VA examination to obtain a medical opinion as to whether the Veteran has any current right leg disability that is attributable to his active military service. See McLendon, 20 Vet. App. at 81. The Veteran contends that service connection is warranted for disability of his right hip on a secondary basis to disability of his right leg. The Veteran's secondary service connection claim of a right hip disability is inextricably intertwined with the claim for service connection for disability of the right leg, which is being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricable intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Thus, the Board must defer deciding the disability of the right hip claim pending the outcome of the claim concerning disability of the right leg. VACOL's reflects that a notice of disagreement (NOD) was received on August 9, 2013 as to the noncompensable initial rating assigned for left ear hearing loss in a rating decision in February 2013. The record does not reflect that a statement of the case has been issued in accordance with 38 C.F.R. § 20.200 (2012). In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that in circumstances where a NOD is filed, but a Statement of the Case (SOC) has not been issued, the Board must remand the claim to the RO to direct that an SOC be issued. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records, from the Poplar Bluff VAMC and any associated outpatient clinics, since February 2011, and from the St. Louis VAMC and any associated outpatient clinics, since December 2010, and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of any right leg disability that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete record, to include a copy of this Remand, the claims folder and Virtual VA records, must be made available to and reviewed by the examiner in conjunction with the examination. If any right leg disability is diagnosed, opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that that the diagnosed right leg disability was present in service, was caused by service, or is otherwise related to service. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for all opinions expressed must be provided. 3. The Veteran must be notified that it is his responsibility to report for the examinations 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 claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 4. Finally, after undertaking any other development deemed appropriate, readjudicate the Veteran's claims. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. 5. Issue a Statement of the Case, after any further development indicated, to the Veteran and his representative pertaining to the issue of entitlement to a compensable initial evaluation for left ear hearing loss. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202 and 20.302(b). If a timely substantive appeal is not filed, the issue should not be certified to the Board. If a timely substantive appeal is filed, the issue should be returned to the Board for further appellate consideration, if appropriate. 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). This claim 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. 2013). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).