Citation Nr: 1340116 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 11-17 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for bilateral knee disability. ATTORNEY FOR THE BOARD T. Matta, Associate Counsel INTRODUCTION The Veteran had active service from June 2000 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was filed in August 2009, a statement of the case was issued in April 2011, and a substantive appeal was received in June 2011. The issue of entitlement to service connection for a left shoulder disability was raised in the Veteran's substantive appeal but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue, and it is 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 appellant if further action is required. REMAND A preliminary review of the record reflects that further development is necessary before the claim on appeal is decided. Specifically, the Board finds that VA medical examinations are necessary. Tinnitus The Veteran has asserted that his tinnitus is due to hazardous noise exposure sustained during active service. Although the Veteran failed to attend two previously scheduled VA audiological examinations, the record shows that there was confusion over the location of the examinations. As the record contains lay evidence that the Veteran has tinnitus and there is evidence of noise exposure during active service, the Board is of the opinion that the Veteran has met the criteria of 38 C.F.R. § 3.159 and a VA examination should be obtained. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Right Shoulder and Bilateral Knee Disabilities The Veteran has also asserted that his right shoulder and bilateral knee disabilities are due to his active service. The claims file includes VA treatment records for a right shoulder disability, private records for a left knee disability, and the Veteran's own statement that he had surgery on his right knee. Additionally, a 2008 private treatment record reports the onset of shoulder and knee symptoms eight years prior, which would fall during the Veteran's military service. Under the circumstances, the Board finds that a VA examination with medical opinion is warranted for the issues of entitlement to service connection for right shoulder and bilateral knee disabilities. McLendon, 20 Vet. App. at 79. Finally, a review of the claims file reflects that there are outstanding relevant treatment records. Specifically, the claims file does not include any records concerning the Veteran's right knee surgery. Therefore, a remand is also required to obtain these records and associate them with the claims file. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should ask the appellant to identify all providers who provided treatment for, or performed surgery on, the Veteran's right knee, and provide any releases necessary for VA to secure such records. The RO/AMC should then obtain for the record copies of the complete records of all such treatment and evaluation from all identified sources. If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 2. After any records requested above have been associated with the claims file, the RO should schedule the appellant for a joints VA examination to determine the nature and etiology of the claimed right shoulder and bilateral knee disabilities. It is imperative that the claims file be made available to and be reviewed by the examiner in connection with the examination. The examiner should clearly identify all claimed disabilities. For each current disability, please state whether it is at least as likely as not (a 50% or higher degree of probability) that the disability is causally related to the Veteran's active duty service. A clear rationale for all opinions is required, to include a discussion of the facts and medical principles involved. 3. The Veteran should be scheduled for a VA audiological examination for the purpose of ascertaining the etiology of his tinnitus. It is imperative that the claims file be made available to and be reviewed by the examiner in connection with the examination. All indicated studies should be performed. The examiner is requested to render an opinion as to the following: Whether the Veteran's claim of tinnitus is at least as likely as not (at least a 50 percent probability) etiologically related to any incident of the Veteran's active service, including the Veteran's report of noise exposure in his position as an antitank assault guided missileman. A clear rationale for all opinions is required, to include a discussion of the facts and medical principles involved. It is emphasized that the lact of actual hearing loss disability during service is not dispositive; if there are indications of a decrease in hearing acuity during service (such as a significant increase in hearing thresholds on audiological examination), then consideration should be given to whether current hearing loss is related to noise exposure during service. 4. Following completion of the above, and any other necessary development, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted, the appellant should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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. 2012). _________________________________________________ ALAN S. PEEVY 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).