Citation Nr: 1805974 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-29 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral knee disabilities. 2. Entitlement to service connection for bilateral foot disabilities. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for tonsil cancer. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1962 to June 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2011 and June 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The August 2011 rating decision denied service connection for bilateral knee disabilities, bilateral foot disabilities, bilateral hearing loss, and for tinnitus. The June 2014 rating decision denied service connection for tonsil cancer. In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceedings is associated with the electronic claims file. The issue of entitlement to service connection for tonsillitis has been raised by the record in a June 2013 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. In April 2011, the Veteran's private treating physician indicated that the Veteran had osteoarthritis of his bilateral knees. The physician stated that it was possible that the Veteran's bilateral knee disabilities started during his time on active duty. Additionally, an April 2011 letter from a separate private physician indicated the Veteran had disabilities of his bilateral feet. The physician stated that the Veteran's complaints and conditions were consistent with his history of activity in his active service and could have caused his current disabilities. The Board also notes that the Veteran has not been afforded a VA examination to determine the etiology of his bilateral knee or foot disabilities. After review of the claims file, and based on the opinion of his private treating physicians, the Board finds that there is sufficient evidence to warrant a VA examination for the Veteran's claims for service connection for bilateral knee and bilateral foot disabilities. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, remand is warranted in order to schedule the Veteran for an appropriate VA examination in accordance with McClendon. In August 2011, the Veteran underwent a VA examination regarding his bilateral hearing loss and tinnitus. The examiner opined that the Veteran's hearing loss and tinnitus were not due to his in-service noise exposure while serving as a construction equipment operator as the examiner stated the Veteran reported significant occupational noise exposure after service. However, in his October 2017 hearing testimony, the Veteran clarified that after service he was a truck driver and did not operate heavy equipment, as indicated in the August 2011 VA examination. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). When an examination is inadequate, the Board must remand the case for further development. Bowling v. Principi, 15 Vet.App. 1 (2001), 38 C.F.R. § 4.2 (2016). Based on the Veteran's October 2017 hearing testimony, the Board finds that the August 2011 VA examination was not adequate for adjudication purposes and a new examination is warranted. In regards to the Veteran's claim for entitlement to service treatment for tonsil cancer, the Veteran testified in his October 2017 hearing that he was stationed at the U.S. Navy Northeast Cape St. Lawrence Island Air Force station ("Northeast Cape") in Alaska from June 1965 to June 1966 and was exposed to polychlorinated biphenyls (PCBs) and radiation during that time. The Veteran contends that his exposure to PCBs and radiation at that base caused his diagnosed tonsil cancer. The Board notes that the Veteran's file evidences he was stationed at the Northeast Cape. The Board also notes that the Environmental Protection Agency (EPA) has designated the Northeast Cape as a Superfund Site. Therefore, the Board finds that additional research and development is warranted to determine the Veteran's exposure to PCBs and radiation while stationed at the Northeast Cape. Accordingly, the case is REMANDED for the following actions: 1. Contact the National Personnel Records Center (NPRC) and/or any other applicable government agency to confirm the Veteran's dates of service at the U.S. Navy Northeast Cape, St. Lawrence Island Air Force station and ensure all available military records are obtained and associated with the claims folder. All efforts to obtain military records should be fully documented. 2. Thereafter, contact the Environmental Protection Agency, Department of Defense, and any other appropriate government agency for verification of the presence or use of PCBs or radiation at the U.S. Navy Northeast Cape, St. Lawrence Island Air Force station for the dates in which the Veteran was stationed at that base. 3. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant private medical treatment records for his bilateral knee and foot disability, for his bilateral hearing loss and tinnitus, and for his tonsil cancer. After securing the proper authorizations where necessary, arrange to obtain all the records of treatment or examination from all the sources listed by the Veteran that are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 4. Thereafter, Schedule the Veteran for a VA examination to determine the nature and etiology for his bilateral knee and foot disability. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner should indicate in his/her report whether or not such was reviewed. All necessary tests and studies should be accomplished. The examiner should specifically provide the following opinion: (a) Whether it is at least as likely as not (i.e. a 50 percent probability or greater) that any bilateral knee or foot disability had onset in service or within one year following separation from service, or was causally related to service. The examiner must consider the Veteran's statements regarding onset and statements regarding the continuity of symptomatology, including his October 2017 hearing testimony. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner is asked to reconcile the April 2011 letters from the Veteran's private treating physicians regarding his bilateral knee and foot disabilities. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. Thereafter, schedule the Veteran for an audiological examination to determine the nature and etiology of any hearing loss and/or tinnitus. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner should indicate in his/her report whether or not such was reviewed. All necessary tests and studies should be accomplished. a. The examiner should determine whether the Veteran has hearing loss sufficient to qualify as a disability for VA purposes under 38 C.F.R. § 3.385. b. If the Veteran has either, the examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hearing loss and/or tinnitus had its onset during service or is otherwise related to active military service. The examiner must consider the Veteran statements regarding onset and continuity of symptomatology, including his October 2017 hearing testimony regarding both his in-service noise exposure and his post-service noise exposure. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Any opinion expressed must be accompanied by a complete rationale. The examiner must not rely solely on the possibility that the Veteran's hearing was within normal limits for VA purposes at the time of separation from service, as the basis for any opinion provided. The medical reasons for accepting or rejecting the Veteran's statements should be set forth in detail. If the examiner is unable to provide an opinion without resort to speculation he or she should explain why. 6. After ensuring compliance with the development requested above, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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. §§ 5109B, 7112 (2012). _________________________________________________ Lesley A. Rein 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).