Citation Nr: 0813694 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-39 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The veteran had active service from March 1980 to October 1982. This case comes before the Department of Veterans' Appeals (Board) on appeal from July 2004 and October 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas. The July 2004 rating decision denied service connection for left and right knee disabilities. The October 2004 rating decision continued the denial of these claims, and additionally denied service connection for bilateral hearing loss. An August 2006 rating decision granted service connection for residuals, left knee puncture wound and tibial cortex injury (claimed as left knee injury), and assigned a noncompensable rating for this disability, effective from November 2002. The August 2006 rating decision further determined that the grant of service connection for residuals, left knee puncture wound and tibial cortex injury constituted a "full grant of the benefits sought as to this issue." The Board does not agree with this determination and finds that this issue must be remand this case for further development. In December 2006, the veteran and his representative appeared at a hearing at the RO conducted by a former Veterans Law Judge. Following the proceeding, he filed additional evidence that was accompanied by a waiver of RO consideration; this evidence will be considered by the Board in the adjudication of this appeal. In August 2007, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in September 2007. In November 2007, the Board informed the veteran that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him a copy of that opinion and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. In a signed statement, dated later that month, the veteran submitted additional evidence in response to the specialist's opinion. In February 2008, the Board informed the veteran that the Veterans Law Judge who conducted the December 2006 hearing was no longer employed by the Board, and stated that he was entitled to another hearing. The Board indicated that if he did not veteran did not request a second hearing within 30 days, the Board would assume he did not wish he did not wish to testify at a second Board proceeding. As such, the Board will proceed with the consideration of his case. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board initially notes that the veteran's original application for compensation clearly included a claim for service connection for a left knee disorder. In addition, the RO initially denied the veteran's claim for service connection for a left knee disorder on the basis that there was no nexus between the veteran's left knee disability and a motorcycle injury he sustained in service. In August 2006, the RO granted service connection for residuals of left knee puncture wound and tibial cortex injury and stated that this constituted a full grant of the benefits claimed on appeal. As a result of the prior RO decisions in this matter, the Board does not agree. More specifically, since the August 2006 rating decision does not clearly reflect that it is granting service connection for a left knee disorder it cannot constitute the full grant of the benefit sought. This is especially true where the statements of the veteran and his representative clearly evidence the continued desire for service connection for a left knee disorder. Thus, to insure that he is afforded appropriate due process, the Board finds that it has no alternative but to remand this matter so that VA can readjudicate the specific issue of entitlement to service connection for a left knee disorder. See 38 C.F.R. § 19.9 (2007). Remand of this issue and the issue of entitlement to service connection for a right knee disorder is also required based on the veteran's additional contention that his right and left knee disabilities were caused by the newly service- connected residuals of his in-service puncture wound. In this regard, following the grant of service connection for the residuals of left knee puncture wound and tibial cortex injury in August 2006, the RO has not adjudicated the issue of entitlement to service connection for left and right knee disabilities as secondary to service-connected disability. 38 C.F.R. § 3.310(a) and (b) (2007); Allen v. Brown, 7 Vet. App. 439 (1995). Thus, the veteran's claims for service connection for left and right knee disabilities must be remanded for readjudication on the basis of secondary service connection. Prior to such readjudication, the veteran should also be afforded with further examination to better address the veteran's contentions under 38 C.F.R. § 3.310(a) and (b). In addition, the Board's review of the record discloses that following the RO's July 2004 denial of the veteran's claim for service connection for tinnitus, he filed a statement in September 2004 challenging the determination, which the Board construes as a notice of disagreement with that determination. Therefore, the Board has no discretion and must remand this claim for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Finally, as to the veteran's claim for service connection for bilateral hearing loss, although the veteran was furnished with an examination and etiological opinion in September 2004, it is unclear whether the examiner had access to the veteran's claim file in conjunction with the examination, as there is no mention of the veteran's separation examination hearing thresholds in the left ear of 25 decibels at 500 and 6000 Hertz, and April 1981 hearing thresholds in the right ear of 25 decibels at 500 and 4000 Hertz. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). In addition, while a March 2004 audiogram does not reflect findings on the left ear that demonstrate hearing loss disability pursuant to 38 C.F.R. § 3.385 (2007), hearing loss disability is shown on the right side, and the September 2004 examiner diagnosed mild to moderate bilateral sensorineural hearing loss. Moreover, the examiner noted that the veteran was subjected to noise exposure during service on the flight line as an aircraft mechanic, and while the examiner indicates that the veteran had similar exposure after service, the veteran denies any exposure to aircraft noise in carrying out his post-service responsibilities of maintaining cockpit instrumentation. Therefore, the Board finds that the veteran should be afforded a new examination to determine whether any current hearing loss and tinnitus are related to active service. Accordingly, the case is REMANDED for the following action: 1. Afford the veteran an appropriate VA examination with respect to left and right knee claims. The veteran's claims file should be made available to the examiner, and all indicated studies should be conducted, and all findings reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the veteran's left and right knee disorders are related to his service-connected residuals of left knee puncture wound and tibial cortex injury. The examiner is also specifically requested to opine as to whether it is at least as likely as not that some quantifiable component of the veteran's left and right knee disorders represents an increase beyond normal progress as a result of his service- connected residuals of left knee puncture wound and tibial cortex injury. If such aggravation is found present, the examiner should address the following medical issues: (1) The baseline manifestations of the veteran's right and left knee disorders found present prior to aggravation; (2) The increased manifestations which, in the examiner's opinion, are proximately due to the service-connected residuals of left knee puncture wound and tibial cortex injury based on medical considerations; and (3) The medical considerations supporting an opinion that increased manifestations of left and right knee disorders are proximately due to the service- connected residuals of left knee puncture wound and tibial cortex injury. Any opinions expressed by the examiner must be accompanied by a complete rationale. 2. Afford the veteran to be afforded a VA audiological examination. The veteran's claims folder must be made available and reviewed by the examiner. All indicated studies should be conducted, and all findings reported in detail. The examiner should opine whether it is at least as likely as not (50 percent or greater) that the veteran has tinnitus, and if so, whether the disability had its onset during service. With respect to hearing loss, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the veteran has hearing loss, and if so, whether this disability had its onset during service. A detailed rationale for any opinion expressed should be provided. 3. Readjudicate the claims on appeal, to include entitlement to a left knee disorder as directly related to service, and left and right knee disorders as directly related to service and as related to service- connected residuals of left knee puncture wound and tibial cortex injury. If the benefits sought on appeal remain denied, the veteran and his representative should be provided a supplemental statement of the case, and given the opportunity to respond thereto. 4. Finally, issue a statement of the case with respect to the issue of service connection for tinnitus. The veteran and his representative should be advised of the need to file a substantive appeal following the issuance of the statement of the case if the veteran wishes to complete an appeal. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).