Citation Nr: 1800883 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 10-27 686A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for bilateral hearing loss disability. 3. Entitlement to service connection for sinusitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Arnold, Asssociate Counsel INTRODUCTION The Veteran served on active duty from February 2003 to April 2007, July 2008 to October 2008 and December 2009 to February 2010, with additional periods of service in the Army National Guard. This matter came before the Board of Veterans Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. The appeal originally included the issues of service connection for a left knee disability, allergic rhinitis, a skin condition, folliculitis barbae and residuals of a cyst. As service connection for these disabilities was granted in an October 2013 rating decision, these issues are no longer before the Board. The Veteran testified before the undersigned Veteran's Law Judge during a September 2017 Videoconference hearing. The transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that additional development is necessary prior to adjudicating the issues on appeal. At a VA audiological examination in September 2013 the Veteran was found not to have a hearing loss disability for VA purposes. At the hearing, the Veteran testified that his bilateral hearing loss has worsened in severity since the September 2013 VA examination. A remand is therefore required to determine if the Veteran now has a hearing loss disability and if so, whether it is relate to service. The Veteran has also testified that he reinjured his right knee while on active service with the National Guard in November or December of 2009. The Board notes that service treatment records (STRs) have not been associated with the claim file from either the Veteran's July-October 2008 or December 2009-February 2010 periods of National Guard service. There is a September 2013 finding of unavailability in the record regarding the Veteran's service treatment records (STRs) from December 2009 to February 2010. However, it is not clear to the Board that all avenues to secure those records have been exhausted. The record shows that the RO contacted the Records Management Center (RMC) and the Adjutant General of Tennessee. The Adjutant General then advised the RO to contact the National Personnel Records Center (NPRC) to obtain the records, but there is no evidence in the record of any request to the NPRC. There is also no finding of unavailability regarding the 2008 STRs. The Board therefore finds that to fulfill the duty to assist, upon remand the RO must make as many requests as necessary to obtain the Veteran's outstanding STRs until the RO determines that either the records do not exist or that further efforts to obtain those efforts would be futile. See 38 C.F.R. § 3.159 (2017). These efforts must include contacting the NPRC. The Veteran was provided with a VA knee examination in September 2013, which found his right knee disability less than likely caused by service because it found that his in-service right knee injury was not consistent with his current diagnosis of patellofemoral right knee pain. The Board's review of the record indicates that the Veteran was subsequently evaluated for orthopedic surgery at the Memphis VA Medical Center (VAMC). VA treatment records from October 2014 include MRI results and diagnoses of not only patellofemoral right knee pain but chondromalacia and bilateral knee infrapatellar tendinitis. The MRI results also showed a mild patellar tendon contusion. As the Veteran has been diagnosed with additional right knee disabilities since the September 2013 VA examination, a new examination is warranted. The Veteran has also reported that he receives private treatment for his sinusitis, but the Board's review of the record indicates that those records have not yet been obtained. Therefore, efforts should be made on remand to obtain a complete copy of the Veteran's outstanding private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide a completed release form authorizing VA to request copies of any treatment records from any private medical providers who have treated him for sinusitis. All identified records should be obtained and any efforts to obtain the records must be clearly documented in the claim file. 2. Obtain any outstanding VA treatment records and associate them with the claim file. 3. Request the Veteran's outstanding service treatment records, including National Guard records from July-October 2008 and December 2009-February 2010. Efforts to obtain the file should include a request to the NPRC. All attempts to obtain such records should be clearly documented in the claim file. If it is determined that those records do not exist or are otherwise unavailable, a formal finding of unavailability should be made and associated with the claim file. If the records cannot be located, provide the Veteran with a proper notice that meets the requirements under 38 U.S.C. § 5103(A)(b)(2) (2012) and 38 C.F.R. § 3.159(e) (2017) and includes (a) the identity of specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claim, and (d) that the Veteran is ultimately responsible for providing the evidence. Such notice should also inform the Veteran of alternative sources of evidence that may be submitted in place of his missing service records. 4. After completion of the foregoing development to the extent possible, schedule the Veteran for an appropriate VA examination, to determine the etiology of any current right knee disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current right knee disability found, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. Attention is also requested to the October 2014 MRI results. 5. Schedule the Veteran for an appropriate VA audiological examination, to determine the etiology and severity of any current bilateral hearing loss disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current hearing loss disability found, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service, including the claimed exposure to jet engine noise. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 6. The examination reports must be reviewed to ensure they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. 7. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. 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 matter must be afforded expeditious treatment. The law requires that all issues 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. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).