Citation Nr: 0814670 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 02-02 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to an increased rating for evaluation of post traumatic osteoarthritis with patellofemoral disease of right knee in excess of 20 percent. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD James A. DeFrank, Associate Counsel INTRODUCTION The veteran served on active duty from January 1963 to January 1966. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. A May 2002 rating decision, in part, denied service connection for a left knee disability, hearing loss and tinnitus. An August 2006 rating decision denied the veteran's claim for a rating higher than 20 percent for his service-connected right knee disability. The veteran provided testimony in support of his appeal at a hearing before the undersigned at the RO in July 2003. A transcript of the hearing has been associated with his claims folder. The Board remanded the appeal in April 2004 for additional development. In June 2005, the Board granted a motion to advance this appeal on its docket. 38 U.S.C.A. § 7107(a)(2)(B) (West 2002); 38 C.F.R. § 20.900(c) (2007). In a June 2005 decision, the Board denied the veteran's claims for service connection for a left knee disability, a bilateral upper leg disability, a back disability, bilateral hearing loss and tinnitus; the Board also determined that it did not have jurisdiction over a claim for increased rating for a right knee disability. In a memorandum decision issued in November 2007, the United States Court of Appeals for Veterans Claims (CAVC) affirmed the decisions regarding jurisdiction over the claim for increased rating for the right knee disability, entitlement to service connection for a bilateral upper leg disability and entitlement to service connection for a back disability. The CAVC also vacated the Board decision regarding the left knee, bilateral hearing loss and tinnitus claims and remanded theses matters to the Board. While the appeal was pending at the CAVC, the veteran perfected an appeal with regard to the issue of entitlement to an increased rating for the right knee disability. 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 In his June 2007 substantive appeal regarding the increased rating for a right knee disability issue, the veteran indicated that he desired a hearing at a local VA office before a member or members of the Board. He has not yet been afforded a hearing on this issue. He is entitled to such a hearing. 38 C.F.R. § 20.700(a) (2007). To date, the veteran has not been afforded this hearing as one has not been scheduled. The veteran's hearing request therefore remains pending. If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Regarding the veteran's left knee claim, medical records and the veteran's report of current left knee symptoms provide competent evidence of a current left knee condition. Service medical records demonstrate a strain of the right knee in March 1964 that was sustained in service. However, there are no complaints or treatments related to a left knee condition in service. The veteran underwent a VA examination for his knees in March 2001. The examiner concluded that the veteran's bilateral knee symptoms were probably likely due to his in-service problems which began in 1964. However, the examiner did not have access to the claims folder, and relied on the veteran's report that the 1964 injury involved both knees, whereas the service treatment records report that the injury only involved the right knee. An examination is needed that is a product of the review of the entire record, including the veteran's reports and the service treatment record. The veteran underwent subsequent VA examinations in April 2003, August 2005 and May 2006. However, the VA examiners did not give an opinion as to the etiology of the veteran's left knee condition. Regarding the veteran's hearing loss and tinnitus claims, the CAVC decision directed that the veteran be afforded new examinations. Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should schedule the veteran for a hearing before a Veterans Law Judge regarding his claim for an increased rating for post traumatic osteoarthritis with patellofemoral disease of right knee. 2. The veteran should be afforded a VA examination in order to determine whether he has a left knee disability related to service. The claims folder must be made available to the examiner for review in conjunction with the examination and the examiner should acknowledge such review. After completion of the examination and review of the record, the examiner should answer the following questions: 1) does the veteran have a current left knee disability? 2) If the veteran is found to have a current left knee disability, is it at least as likely as not (50 percent or greater probability) that the current left knee disability had its onset in service or is the result of a disease or injury in service? 3. The veteran should be afforded an audiology examination in order to determine whether he has a hearing loss disability or tinnitus, and if so, the etiology of the disabilities. The examiner should review the claims folder and provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the current hearing loss disability had its onset in service, or is otherwise the result of a disease or injury in service (including noise exposure). If current tinnitus is found, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that current tinnitus had its onset in service, or is otherwise the result of a disease or injury in service (including noise exposure). The examiner should provide a rationale for all opinions. 4. Then re-adjudicate the claim. If the determination remains unfavorable to the veteran, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. 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). _________________________________________________ Mark D. Hindin 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).