Citation Nr: 1342847 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 11-27 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a chronic shoulder disability. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for low back disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Appellant is a Veteran who served on active duty from January 1962 to January 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). A video conference hearing was held before the undersigned Veterans Law Judge (VLJ) in May 2012. 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. The Board advanced the appeal on the docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). REMAND In April 2009, the Veteran was not provided sufficient notice as to how to substantiate his petition to reopen a claim of service connection for a low back disability. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran must be informed that his claim was previously denied on the basis of incurrence and aggravation. At his video conference hearing held in May 2012, the Veteran reported that he received medical care for his back in 1978 and 1979, for hearing loss in 1966, and shoulder pain in 1968 or 1969 at the Philadelphia, Pennsylvania, VA facility. Although there is a record on file from March 1978, it does not appear that an adequate search has been made for all outstanding records. Since these records are potentially relevant to his claim, the clinical documentation associated with this medical care must be incorporated into the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are constructively part of the record which must be considered). Also concerning his claim for service connection for a shoulder disability, the Veteran reported that he injured his shoulder when lifting heavy ammunition (at the same time he injured his back). A post service September 2009 VA magnetic resonance imaging (MRI) report revealed glenohumeral deformity of the right shoulder as well as torn tendons. He is competent to say he had an in-service injury and experienced continuous symptoms since service indeed, even in the absence of any actual medical treatment records otherwise confirming that he has. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In light of the Veteran's report of in-service injury and continuity of symptoms since service, the Board finds that VA compensation examination and opinion are needed to assist in making any determination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); and 38 C.F.R. § 3.159(c)(4). In particular, an examination that takes into consideration the Veteran's report of in-service injury. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran VCAA notice which describes the requirements for establishing service connection for a low back disability, and what would constitute new and material evidence to reopen his claim, to include how to establish his claim on the basis of aggravation. 2. In order to help VA in limiting the search for additional VA records, the Veteran should be asked to provide more specific dates in regard to his treatment at the Philadelphia VAMC for back, hearing loss and shoulder problems in the 1960's and 1970's. After receiving this information, request from appropriate sources in-patient/hospital treatment records to include the archives, specifically for medical care provided in 1966 for bilateral hearing loss; 1978 to 1979 for back problems; and in 1968 and 1969 for shoulder problems. Any PIES response should state whether the clinical record libraries of this hospital are available for search, and, if so, whether the search was successful or not. If these records cannot be obtained or found, so inform the Appellant and document any negative reply for the record. 3. If, and only if additional VA medical records are received showing VA treatment for hearing loss in the 1960's, forward the Veteran's claims folder to the examiner who conducted the May 2010 VA examination (or a suitable substitute if either individual is unavailable) for an addendum concerning the likelihood that bilateral hearing loss was incurred or aggravated during service. 4. Irrespective of the receipt of additional VA records, schedule the Veteran for appropriate examination to determine the nature and etiology of any chronic shoulder disability. The Veteran's complete claims folder must be made available to the examiner. If possible, the examiner should provide opinion as to whether any diagnosed chronic shoulder disability is at least as likely as not (that is, a probability of 50 percent or better) related to his military service? A complete rational for any opinion expressed should be included in the report. The examiner should consider and comment on the Veteran's statements regarding the events that are said to have occurred during his service. See Dalton, supra. 4. After the development requested above has been completed, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Appellant and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Appellant has the right to submit additional evidence and argument on the matter or 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 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). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs