Citation Nr: 1502947 Decision Date: 01/21/15 Archive Date: 01/27/15 DOCKET NO. 09-27 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for a respiratory disorder to include chronic obstructive pulmonary disease (COPD). 4. Entitlement to service connection for an undiagnosed illness associated with service in Southwest Asia manifested by symptoms including generalized Joint pain memory loss fatigue and sleep disturbance (also referred to herein simply as an undiagnosed illness). 5. Entitlement to an initial compensable rating for bilateral hearing loss. (The issues of entitlement to a compensable rating for a scar on the right lower leg entitlement to an increased rating for a left knee disorder entitlement to an increased rating for a right ankle disability entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for additional disability of the right ankle/lower extremity as a result of VA medical treatment, and entitlement to an extension of a temporary total rating for a right ankle disability pursuant to 38 C.F.R. § 4.30 are addressed in a separate decision). REPRESENTATION Appellant represented by: Robert W. Legg, Attorney. WITNESS AT HEARING ON APPEAL Veteran, Veteran's spouse ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from January to May 1990, November 1990 to July 1991 and from June 1993 to December 1994. This matter is on appeal from rating decisions in November 2007 and September 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned Veterans Law Judge in August 2011. A transcript of the hearing is of record. This appeal is comprised entirely of documents contained in the Virtual VA paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future documents should be incorporated in the Veteran's VBMS file. The Veteran submitted a statement in February 2012 requesting that the issues on appeal be withdrawn, but issued a subsequent letter in September 2012 indicating that his prior request was in error, and that he wished to continue his appeal. In a January 2014, the Board determined that the February 2012 withdrawal was still in effect, and dismissed the claims. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) which, in an October 2014 Order, vacated the Board's decision and remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In view of the Veteran's September 2012 statement that his withdrawal in February 2012 was erroneous, fundamental fairness dictates that these claims be adjudicated on the merits. Since this September 2012 statement was submitted prior to the Board's decision, there is no administrative burden in continuing with adjudication. However, because the Veteran's September 2012 statement gave the impression to the RO that he no longer wished to pursue the claims on appeal, it does not appear that any of the development required by the Board in its November 2011 Remand has been undertaken. Moreover, a supplemental statement of the case was never issued. The Appeals Management Center is referred to the November 2011 Remand for the reasons and bases for the required actions, which are reiterated below Finally, as noted above, a number of issues on appeal are addressed in a separate decision under Docket No. 12-20 713A. The RO should ensure that all the required development contained in that Remand should also be completed prior to adjudication of the issues addressed here. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran written notification of VA's determination that future efforts to obtain service treatment records regarding him would be futile in compliance with 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e)(1). 2. If not already completed, review the claims file and ensure all necessary development has been undertaken, to include obtaining and associating with the claims file updated VA treatment records, including but not limited to September 2011 MRI of the right knee. 3. Following completion of the development in paragraphs 1 and 2, arrange for the Veteran to undergo an appropriate VA examination regarding any low back and/or right knee disorder found to be present. The entire claims file shall be made available to and reviewed by the examiner. The examiner also shall obtain from the Veteran a full history of his relevant symptomatology, to include onset, frequency, duration, and severity. All assessments, tests, studies, and/or evaluations deemed necessary next shall be performed. Thereafter, the examiner shall opine as to the diagnosis of any existing low back and/or right knee disorder. For each such disorder diagnosed, the examiner then shall opine with respect to nexus as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder: (i) was incurred in or is a result of the Veteran's service, to include parachute jumps and some hard landings, or (ii) was caused or aggravated by any of his service-connected disorders, including but not limited to his right ankle disorder. A complete rationale with specific comment on the pertinent medical and lay evidence of record shall be provided for each diagnosis and nexus opinion. Each of the above actions shall be documented in an examination report. 4. Following completion of the development in paragraphs 1 and 2, arrange for the Veteran to undergo a VA Gulf War Guidelines examination, to include any further necessary specialist examinations, regarding the generalized joint pain, memory loss, and fatigue/sleep problems he contends are associated with his service in the Southwest Asia theater of operations during the Persian Gulf War. The entire claims file shall be made available to and reviewed by the examiner. The examiner also shall obtain from the Veteran a full history of his relevant symptomatology, to include onset, frequency, duration, and severity. All assessments, tests, studies, and/or evaluations deemed necessary next shall be performed. Thereafter, the examiner shall opine as to the diagnosis of any existing disorder involving generalized joint pain, memory loss, and/or fatigue/sleep problems. For each such disorder found to exist, the examiner further shall indicate whether or not all relevant symptoms and abnormal assessment/ test/study/evaluation findings are associated with it. The examiner then shall opine with respect to nexus for each such disorder as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was incurred in or is a result of the Veteran's service, to include parachute jumps and some hard landings as well as exposure to environmental hazards while deployed to the Southwest Asia theater of operations during his first period of active service. A complete rationale with specific comment on the pertinent medical and lay evidence of record shall be provided for each diagnosis and nexus opinion. Each of the above actions shall be documented in an examination report. 5. Following completion of the development in paragraphs 1 and 2, arrange for the Veteran to undergo an appropriate VA examination regarding any respiratory disorder, to include COPD, found to be present. The entire claims file shall be made available to and reviewed by the examiner. The examiner also shall obtain from the Veteran a full history of his relevant symptomatology, to include onset, frequency, duration, and severity. All assessments, tests, studies, and/or evaluations deemed necessary next shall be performed. Thereafter, the examiner shall opine as to the diagnosis of any existing respiratory disorder. For each such disorder diagnosed, the examiner then shall opine with respect to nexus as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was incurred in or is a result of the Veteran's service, to include exposure to environmental hazards while deployed to the Southwest Asia theater of operations during his first period of active service. A complete rationale with specific comment on the pertinent medical and lay evidence of record shall be provided for each diagnosis and nexus opinion. Each of the above actions shall be documented fully in an examination report. 6. After completion of the development in paragraph 2 adjudicate the issue of entitlement to an initial compensable disability evaluation for bilateral hearing loss (which subsumes readjudication of the issue of entitlement to an initial compensable disability evaluation for right ear hearing loss). Undertake all necessary development associated with this claim, including, a VA audiological examination. If the benefit sought is not granted in full, the Veteran and his representative shall be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond. 7. When all the above development is completed, to include the development required in the separate decision, readjudicate the issues on appeal. If any of these benefits sought is not granted, the Veteran and his representative shall be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond. 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). 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 2014). _________________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).