Citation Nr: 1643580 Decision Date: 11/16/16 Archive Date: 12/01/16 DOCKET NO. 13-10 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for post traumatic stress disorder (PTSD). 2. Entitlement to service connection for left knee disability. 3. Entitlement to service connection for bilateral hearing loss disability. 4. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Christopher Loiacono, Agent WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from October 1989 to October 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2015, the Veteran testified at hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the file. In May 2015, the Board remanded the claims for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In an effort to ensure due process of law and afford the Veteran every opportunity to substantiate his claims, the Board finds that remand is necessary. First, the record shows that VA correspondence dated in July 2015 was returned by the U.S. Postal Service with the notation that forwarding time had expired. That same address appears to have been used by the VA facility that scheduled the Veteran's VA examinations. Not surprisingly, the Veteran did not show for the scheduled VA examinations. There is no indication in the record that any attempt was made to locate the Veteran to include through his authorized agent whom has maintained regular correspondence with VA on these matters. Therefore, on remand the RO should make an effort to obtain an updated mailing address for the Veteran. If the RO establishes a mailing address for the Veteran, the RO should re-schedule the Veteran for the examinations previously sought in this appeal. The Veteran and his agent are reminded that absent evidence that a claimant notified VA of a change of address and absent evidence that any notice sent to the claimant at his last known address was returned as deliverable, VA is entitled to rely on the address provided. Also, it is well established that it is the claimant's responsibility to keep VA advised of his whereabouts in order to facilitate the conducting of medical inquiry. If he does not do so, "there is no burden on the part of the VA to turn up heaven and earth to find him." See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Second, the RO should make a determination for the record that the STRs are incomplete or unavailable and inform the Veteran at an updated address (if possible) that he can submit evidence from "alternative sources," such as buddy statements. See Washington v. Nicholson, 19 Vet. App. 362, 369-370 (2005). Third, although the RO made an attempt to obtain private medical records identified by the Veteran, specifically, Lakeside Sutter Hospital in February 2010, the RO must make another attempt to obtain these records along with those from Whidbey Island Naval Air Station to ensure that VA has met its duty to assist. The RO should further afford the Veteran an opportunity to provide these records if the RO is unsuccessful in their attempt. The Veteran is reminded that VA's duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential to establishing his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, the case is REMANDED for the following action: 1. The RO should attempt to obtain an updated address for the Veteran to include through his authorized representative. 2. If an updated address for the Veteran is received, the RO should request that the Veteran identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained to include from Lakeside Sutter Hospital and Whidbey Island Naval Air Station. For non-VA treatment records, there should be at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, the RO should inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, the RO should 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. 3. The RO should make a determination for the record that the STRs are incomplete or unavailable and, if an updated address for the Veteran is received, inform him that he may submit evidence from "alternative sources," such as buddy statements. 4. If an updated address for the Veteran is obtained, the he should be rescheduled for the VA psychiatric examination, audiological examinations, and left knee examination. 5. On VA psychiatric examination, the examiner should ascertain the severity of the Veteran's service-connected PTSD. The VA claims files should be reviewed and noted in the report. (a) The examiner should clearly indicate the level of occupational and social impairment: Is there occupational and social impairment with reduced reliability and productivity due to PTSD symptoms; or Is there occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to PTSD symptoms; or Is there total occupational and social impairment due to PTSD symptoms? (b) The examiner should describe the functional limitations caused by the Veteran's service-connected PTSD. The examination report must include a complete rationale for all opinions and conclusions. 6. On VA audiological examination, the examiner should ascertain whether the Veteran has a hearing loss disability as defined by VA for either ear and/or tinnitus that is as likely as not (50 percent probability or greater) etiologically related to service, to include the Veteran's report of acoustic trauma. The Veteran's report of acoustic trauma and his medical history should be accepted as truthful unless otherwise shown by the record. The VA claims files should be reviewed and noted in the report. The examination report must include a complete rationale for all opinions and conclusions reached. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 7. On VA examination of his left knee, the examiner should ascertain whether any left knee disorder shown is as likely as not (50 percent probability or greater) etiologically related to service, to include the Veteran's report of left knee injury diagnosed as a hyper-extended knee. The Veteran's medical history should be accepted as truthful unless otherwise shown by the record. The VA claims files should be reviewed and noted in the report. The examination reports must include a complete rationale for all opinions and conclusions reached. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 8. After completing the above and any other development as may be indicated by the newly developed record, the Veteran's claims should be re-adjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his agent-representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The Veteran 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). _________________________________________________ MICHAEL LANE 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) (2015).