Citation Nr: 1756587 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-27 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Peden, Associate Counsel INTRODUCTION The Veteran had active duty for training from July 1990 to November 1990 and active duty from February 2004 to March 2005. The current matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In July 2017, the Board remanded the issues on appeal for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). 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 appeal so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (2017). In July 2017, the Board remanded the issues of entitlement to service connection for bilateral hearing loss and for a left knee disorder so that the Veteran could be afforded an audiologic examination as well as a left knee examination. The Board also remanded for development of records to confirm his dates of ACDUTRA and INACDUTRA. Since the July 2017 Board remand, no VA examinations have been ordered. Also, although the RO has requested the Veteran's military personnel file in compliance with the July 2017 remand, the Board finds that the documents now associated with the claim file are inadequate to confirm the Veteran's ACDUTRA/INACDUTRA service dates and that additional development is still needed. The Veteran should be asked to provide any evidence in his possession-such as leave and earning statements, orders, etc.-which may corroborate that he was performing ACDUTRA/INACDUTRA service at the time of his claimed left knee injury. Additionally, the AOJ should request the Veteran's Military Master Pay Account (MMPA) from the appropriate custodian which should be capable of verifying whether the Veteran was paid for ACDUTRA/INACDUTRA service from May 2005 through June 2006 (the period of time service treatment records reflect complaints of left knee pain). As a matter of law, a remand by the Board confers upon the Veteran the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). As such, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. On remand, the Veteran should be afforded both a VA audiologic examination to determine the nature and etiology of hearing loss and a VA examination for his claimed left knee disability to determine the nature and etiology of such a disorder. In addition, any further documentation concerning the Veteran's ACDUTRA/INACDUTRA service dates should be obtained. 38 C.F.R. § 3.159 (c)(4). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide any evidence in his possession (e.g., leave and earning statements, orders) that may corroborate that he was performing ACDUTRA service from May 2005 to June 2006. 2. Take additional action to verify the dates of the Veteran's ACDUTRA/INACDUTRA and any other type of Reserve service by contacting the Defense Finance and Accounting Service (DFAS) and requesting the Veteran's Master Military Pay Account (MMPA). The AOJ must document all steps taken to obtain this record. 3. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. Request that the Veteran identify any recent private treatment pertinent to his claims and provide information and authorization sufficient for VA to assist him in obtaining any pertinent medical records not yet associated with the record. 4. Upon receipt of all additional records, if any, schedule the Veteran for appropriate VA examinations for his claimed bilateral hearing loss and left knee disorder. The entire record, including a complete copy of this Remand, must be made available to the examiner for review, and the examiners must indicate in the examination reports that the record was reviewed in conjunction with the examination. All indicated tests and studies should be completed, and the examiners should take a complete history from the Veteran regarding his hearing loss and left knee problems. Following completion of the examinations and review of the claims file, the following must be addressed, as appropriate: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the claimed bilateral hearing loss and left knee disability were caused by, or are otherwise etiologically linked directly to, the Veteran's service. (b) Whether it is at least as likely as not that the claimed left knee disability was caused by the Veteran's service-connected right patella chondromalacia-and whether his hearing was caused by the service-connected tinnitus. (c) Whether it is at least as likely as not that the claimed left knee disability was aggravated by the service-connected right patella chondromalacia-and whether his hearing loss was aggravated by his service-connected tinnitus. Aggravation is defined as permanent exacerbation beyond the natural progression of the condition. 5. To help avoid an additional remand, the RO must ensure that all requested actions have been accomplished in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, the RO should take the appropriate corrective action, to include scheduling the Veteran for another VA examination if appropriate. Stegall v. West, 11 Vet. App. 268 (1998). 6. Thereafter, readjudicate the claims on appeal. If the benefits sought are not granted to the fullest extent, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and provided an opportunity to respond. The claim should be returned to the Board as warranted. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records may impact the decision made. He is advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment. The law indeed requires that all remands by the Board or the United States Court of Appeals for Veterans Claims (Court) be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C. § 7252. 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) (2017).