Citation Nr: 1119829 Decision Date: 05/23/11 Archive Date: 06/06/11 DOCKET NO. 09-37 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss. 2. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected bilateral hammertoes. 3. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected bilateral hammertoes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from April 1953 to February 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2009 and June 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In April 2009, the RO granted service connection for bilateral hearing loss and assigned a 10 percent disability rating effective October 22, 2008. In June 2009, the RO denied service connection for degenerative arthritis of the bilateral hips and the bilateral knees. A video conference hearing was held in April 2011 with the Veteran in Muskogee, Oklahoma, before the undersigned Veterans Law Judge, sitting in Washington, D.C., who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The Board notes that the Veteran also perfected an appeal for service connection for depression, which was also denied in the April 2009 rating decision promulgated by the RO. However, in a January 2011 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD) and assigned a 70 percent rating effective October 22, 2008. See 38 C.F.R. § 4.14. This represents a full grant of the benefit sought on appeal. The Veteran also indicated in a February 2011 written statement that his appeal with respect to PTSD and depression was satisfied. Therefore, that issue is no longer before the Board, as a "case or controversy" involving a pending adverse determination that the Veteran has taken exception to does not currently exist with respect to that issue. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) (quoting Waterhouse v. Principi, 3 Vet. App. 473 (1992)). 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 Bilateral Hearing Loss VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). During his April 2011 hearing, the Veteran testified that he received hearing aids from VA in October 2010. He stated that he also underwent audiometric testing at this time. These records have not been associated with the claims file but would be highly probative in assessing the Veteran's current level of hearing impairment. Therefore, on remand, those records should be obtained. See Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992); see also Jolley v. Derwinski, 1, Vet. App. 37 (1990); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA is held to have constructive notice of documents generated by VA, even if the documents have not been made part of the record in a claim for benefits). Bilateral Hip and Knee Disabilities Service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2010). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Prior to receipt of the Veteran's October 2008 claim, and effective October 10, 2006, 38 C.F.R. § 3.310 was amended in order to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995), regarding secondary service connection on the basis of the aggravation of a nonservice-connected disorder by a service-connected disability. See 71 Fed. Reg. 52744 (2006). The amended 38 C.F.R. § 3.310(b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. In this regard, the recent amendment to 38 C.F.R. § 3.310 provides, in pertinent part, that VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b)(2009). In this case, the Veteran is currently service connected for bilateral hammertoes. He has asserted that he currently has bilateral knee and hip disabilities, and that these disorders were caused, or aggravated by, his bilateral hammertoes. The Veteran was afforded a VA examination in May 2009. The examiner diagnosed the Veteran with status post total knee replacement of the bilateral knees, with moderate loss of function, as well as degenerative disease of the bilateral hips with total right hip replacement. However, she stated that these conditions were due to age related wear and tear and degeneration of the joints. They were not caused by or the result of hammertoes on both feet. The Board also notes that the Veteran's private physician submitted a statement in September 2008 in which he stated that the Veteran's foot deformities resulted in degenerative arthritis of the knees and hips. Unfortunately, this statement is not supported by any rationale, and does not address the extent of aggravation, if any. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4)(i) (2010). In light of the amended regulations regarding establishing service connection for disabilities aggravated by service-connected disabilities, the Veteran's claims for service connection should be remanded for an supplemental VA opinion to determine whether, and to what extent, the Veteran's hip and knee disabilities are being aggravated by his service-connected hammertoes. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. The AMC/RO should obtain the Veteran's VA treatment records dated from October 2010 through the present from the Oklahoma City VA Medical Center. 2. The claims file, including a copy of this remand, should be forwarded to the examiner who conducted the Veteran's May 2009 VA joints examination. The examiner should comment on the etiology of the Veteran's bilateral knee and bilateral hip disabilities, to include whether these disabilities are permanently aggravated by service-connected hammertoes. After a review of the claims folder, the examiner should address the following: (A) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has bilateral hip disabilities that are aggravated or permanently worsened by his service-connected bilateral hammertoes. If it is determined that the Veteran's bilateral hip disabilities were aggravated by his hammertoes, to the extent that is possible, the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation. (B) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has bilateral knee disabilities that are aggravated or permanently worsened by his service-connected bilateral hammertoes. If it is determined that the Veteran's bilateral knee disabilities were aggravated by his hammertoes, to the extent that is possible, the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation. The claims file must be made available to the examiner and the examiner should indicate in his/her report whether or not the claims file was reviewed. A complete rationale for any opinion expressed should be provided. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Note: The requested opinions on aggravation should be premised on the baseline level of severity of the bilateral hip and knee disabilities before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the examiner's current findings. 3. If the May 2009 VA examiner is not available, then the Veteran should be scheduled for a new VA examination in the appropriate specialty to determine whether his bilateral knee and hip disabilities are permanently aggravated by his service-connected hammertoes. The examiner should fully comply with the instructions above and respond to all of the questions posed. 4. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If any claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The Veteran 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. 2010). _________________________________________________ S. L. Kennedy 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) (2010).