Citation Nr: 1340293 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-27 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for degenerative joint disease of the right knee with history of medial menisectomy. 2. Entitlement to service connection for a right hand disorder. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran had active service from September 1973 to September 1976 with additional service in the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2009 and July 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The record reflects a prior final denial of a claim of service connection for degenerative joint disease of the right knee with history of medial menisectomy in March 1993. As such, the Board has rephrased this issue as an application to reopen a previously denied claim as shown on the title page. See 38 U.S.C.A. § 5108 (West 2002). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals VA treatment records dated through August 2012, which were considered by the agency of original jurisdiction (AOJ) in the October 2012 statement of the case and supplemental statement of the case. The remainder of the documents in the Virtual VA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran's service treatment records (STRs) for his period of active service from September 1973 to September 1976 are unavailable. In such a situation, VA has a heightened obligation to "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). The Veteran reports being treated for right knee and hand conditions at the base hospital at Fort Carson, Colorado. See VA Form 21-526 received November 1992; VA Form 21-4138 received in March 2009. In light of the unavailability of STRs, the AOJ should attempt to obtain any records directly from the Fort Carson facility as clinical records may be filed under the name of the facility rather than the service member. The Veteran also reports receiving VA treatment for his right knee in September 1990. See VA Form 21-526 received November 1992. In February 1993, the Battle Creek VA Medical Center (VAMC) notified the RO that the Veteran's treatment records were located at the Grand Rapids VA Outpatient Clinic (VAOPC). See VA Form 10-7131 dated February 1993 (response written on back side of document). The RO subsequently received VA clinic records dated in February 1992. There was no notice that earlier treatment records either did not exist or were not available. On remand, the AOJ must request all hardcopy and electronic records from the Battle Creek VAMC/Grand Rapids VAOPC since 1990. The record also includes information that the Veteran may have received VA treatment at the Ann Arbor VAMC, the Houston VAMC, and the St. Louis VAMC. It cannot be determined from the record when the Veteran first began to receive treatment at these facilities or whether all available records are associated with the claims folder. As such, the AOJ must clarify with the Veteran his date(s) of treatment at all VA facilities and, thereafter, to associate complete records with the claims folder. Notably, the AOJ has screened the Veteran's VA records for relevance. See RO documentations dated September 2008 and October 2010. In light of the unavailability of STRs, the Board notes that records unrelated to the conditions on appeal may contain relevant evidence, such as consistent or inconsistent statements which tend to affect the credibility of assertions made. Thus, the AOJ is requested to associate with the claims folder all available VA clinic records. At this time, the Board finds insufficient evidence of record to determine whether examination and/or opinion is warranted on the claims involving the right hand and bilateral hearing loss. See generally Kahana v. Shinseki, 24 Vet. App. 428 (2011) (discussing the "chicken-or-egg" dilemma faced by the Board when requesting opinions and making credibility determinations with an undeveloped record). Additionally, as the Veteran's claim for service connection for a right knee disorder has not yet been reopened, VA's duty to assist by providing a VA examination and/or opinion is not yet triggered. However, following the receipt of any additional evidence received as a result of the development ordered by the Board, the AOJ should review the record and conduct any additionally indicated development, to include providing the Veteran a VA examination and/or opinion, deemed necessary for the adjudication of such claims. As relevant to the Veteran's claim for service connection for tinnitus, the Board finds that an addendum opinion is necessary. In this regard, he was afforded a VA examination in June 2010 and, at such time, the examiner opined that it was not likely that the Veteran's tinnitus is related to his military service as it began approximately ten years ago, which was many years after his separation from the military. However, in subsequent statements, to include in August 2010 and November 2012, the Veteran indicated that his tinnitus started in the military and he had never reported that it began only ten years ago. Therefore, an addendum opinion regarding the etiology of the Veteran's tinnitus, to include his more recent statements regarding the onset of his ringing in the ears. Accordingly, the case is REMANDED for the following action: 1. Clarify with the Veteran his approximate date(s) and location(s) of all VA treatment. 2. Obtain the following records in the possession of a federal agency: a) conduct a direct request for any medical records of treatment at the base hospital at Fort Carson, Colorado, from September 1973 to September 1976 (please note that clinical records may be filed under the name of the facility rather than the service member); and b) obtain all VA clinic records identified by the Veteran, to include all electronic and hardcopy records from the Battle Creek VAMC and Grand Rapids Outpatient Clinic (GROPC) since 1990, and all electronic and hardcopy records Ann Arbor VAMC, the Houston VAMC and the St. Louis VAMC. The RO is hereby reminded that the Veterans Health Administration (VHA) Records Control Schedule 10-1 at XLIII-3 states that VA treatment records are deemed inactive three years after the last episode of care, at which time they are retired to a selected records storage facility for 72 years. 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. Upon completion of the above, return the June 2010 examination report to the examiner for an addendum opinion. An additional physical examination is not needed, unless considered necessary by the examiner. If the June 2010 VA examiner is unavailable, the requested opinion should be obtained from a similarly qualified examiner. Upon review of the claims folder, the examiner is specifically requested to provide an opinion as to whether it is at least as likely as not that the Veteran's tinnitus results from his unprotected noise exposure as a tank crewman and wheeled track mechanic during service? In offering such opinion, the examiner should specifically consider the Veteran's August 2010 and November 2012 statements that his tinnitus started in the military, his post-service occupations required hearing protection, and his truck driving duties were performed in a sound-proofed cab. A rationale must be provided for the opinion offered. 4. Relevant to the right knee, right hand, and bilateral hearing loss claims, following the receipt of any additional evidence received as a result of the development ordered by the Board, the AOJ should review the record and conduct any additionally indicated development, to include providing the Veteran a VA examination and/or opinion, deemed necessary for the adjudication of such claims. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). These claims 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. 2012). _________________________________________________ A. JAEGER 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).