Citation Nr: 1806906 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-14 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right ankle disability, to include right ankle fracture and arthritis (also claimed as gout). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1981 to June 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2012 (hearing loss, tinnitus, right ankle fracture) and September 2013 (arthritis, claimed as gout, and hypertension) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is included in the Veteran's claims file. The Board notes that the matters on appeal originally included separate issues of whether new and material evidence had been received to reopen a claim of service connection for a right ankle fracture disability, and entitlement to service connection for arthritis (claimed as gout). However, the Board finds the claim for service connection for arthritis is properly considered a part of the request to reopen the claim of service connection for a right ankle fracture disability. At his March 2017 Board videoconference hearing, the Veteran clarified that his right ankle fracture and arthritis claims were based on the same in-service injury, namely, a right ankle injury resulting from being hit by a motor vehicle. He also maintained that they comprised the same claim, as they were the "same condition." The Board also finds significant that medical evidence included in the Veteran's claim file at the time of the initial April 2005 rating decision denying service connection for a right ankle fracture showed current treatment for right ankle arthritis/gout. Finally, the January 2012 rating decision finding that new and material evidence had not been received to reopen the Veteran's previously-denied claim for a right ankle fracture disability discussed the Veteran's history of treatment for gout. Thus, the Veteran's description of the claim, the symptoms that he described, and information obtained in support of the claim, indicates that his request to reopen his claim of service connection for a right ankle fracture disability reasonably encompasses his claim for service connection for arthritis. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As such, the Board has combined these issues on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Before a decision can be reached on the instant claims, a remand is necessary to ensure that there is a complete record upon which to afford the Veteran every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Right Ankle Disability The Veteran contends that he is entitled to service connection for a right ankle disability resulting from being hit by a motor vehicle during service. The record reflects that the Veteran's claim was previously denied because a Military Report of Investigation determined that the Veteran's right ankle injury was due to his misconduct, and therefore, it was not incurred in the line of duty. In December 2012, the Veteran submitted various documents, including what appears to be pages from personnel records concerning his in-service right ankle injury that are not otherwise included in the claims file. In light of this history and the fact that there is no indication that the AOJ has attempted to obtain the Veteran's personnel records, the AOJ should attempt to obtain any outstanding personnel records on remand. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2). Additionally, at his Board videoconference hearing, the Veteran indicated that he had been treated at private medical facilities for his claimed disability, including Saint Francis and the Sentry Freeway Medical Clinic. As it does not appear that these records are included in the claims file, the AOJ should make reasonable efforts to obtain them. See 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). Bilateral Hearing Loss and Tinnitus The Veteran maintains that he is entitled to service connection for bilateral hearing loss and tinnitus due to traumatic noise exposure while performing his military occupational specialty of combat engineer. At his Board videoconference hearing, the Veteran testified that he had private hearing evaluations on more than one occasion. He did not identify the name of the facility. As these records might be pertinent to the Veteran's claims and are not contained in the record, the AOJ should make reasonable efforts to obtain them on remand. See 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). Hypertension The Veteran contends that he is entitled to service connection for hypertension. Given that any outstanding personnel records might be pertinent to the Veteran's claim, adjudication of this matter is deferred. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. In particular, obtain any outstanding treatment records from Saint Francis and the Sentry Freeway Medical Clinic pertaining to the Veteran's right ankle, and any private hearing evaluations. Follow the procedures for obtaining the records, as set forth by 38 C.F.R. § 3.159(c), and obtain VA Form 21-4142 releases if necessary. If VA attempts to obtain any outstanding records that are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Undertake appropriate development to obtain the Veteran's official military personnel file. 3. After completing the development requested above, in addition to any other development deemed necessary by the AOJ, re-adjudicate the Veteran's claims. If any of the benefits sought are not granted in full, furnish the Veteran an SSOC, and return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).