Citation Nr: 1300310 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-22 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from September 1989 to September 1993. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In May 2011 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Las Vegas, Nevada. A transcript of this hearing has been associated with his claims file. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of competent and credible evidence shows that the current left knee disorder is related to the in-service left knee symptomatology. CONCLUSION OF LAW A left knee disorder was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the fully favorable decision below, a detailed explanation of how VA complied with the VCAA is unnecessary. Pertinent law and regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a) (2008). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Analysis Hickson element (1), current disability, has been met. The medical evidence shows diagnoses of a history of a tear in the posterior horn of the left medial meniscus, status post left knee arthroscopy and repair of the tear of the left medial meniscus, and chondromalacia. With respect to Hickson element (2), the service treatment records reflect that the Veteran reported in August 1992 that his left knee had been hurting intermittently for the past six months. In September and December 1992, the assessment was retropatellar pain syndrome. In November 1992, the assessments were tendonitis of the sartorial insertion and left patellofemoral joint syndrome. Therefore, Hickson element (2), disease or injury, has been met. Turning to Hickson element (3), medical nexus, VA treatment records reflect that in March 2009 the Veteran's treating physician opined that the left torn medial meniscus was probably due an injury in service. In April 2009, the appellant's treating physician assistant opined that the left knee disorder was service connected. October 2009 VA surgical records reveal that the claimant reported that he had had left knee medial pain with catching for years, which had increased over the past three years, and that there was a history of an injury in 1992, which was during his service. The March 2010 VA examiner was asked whether the current left knee disorder was caused by or the result of the knee symptomatology in service. The examiner in essence opined that it was less likely than not that the current left knee disorder was not permanently aggravated by the in-service knee problems. The examiner's opinion is inadequate because the doctor did not address causation. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The preponderance of competent and credible evidence shows that the current left knee disorder is related to the in-service left knee symptomatology. Accordingly, Hickson element (3) is established. In summary, the Board is of the opinion that the Veteran has met all requirements needed to establish service connection for a left knee disorder. The benefit sought on appeal is accordingly allowed. ORDER Entitlement to service connection for a left knee disorder is granted. REMAND In May 2009, the Veteran underwent VA audiometric testing for treatment purposes at the Las Vegas VA Medical Center, which showed a speech recognition score of 92 percent in the left ear. The actual pure tone testing results as opposed to a summary are not of record. The AMC should attempt to obtain the May 2009 pure tone testing results as well as any additional records from the Las Vegas VA Medical Center since April 2010. At the hearing, the Veteran testified that his hearing loss has progressively worsened over time. Hearing transcript, page 4. The only VA examination was in March 2010. The appellant should be afforded another VA examination. Finally, the RO last asked the Veteran to identify treatment for hearing loss in November 2008. The AMC should afford the appellant the opportunity to identify any treatment since November 2008. Accordingly, the case is REMANDED for the following actions: 1. The AMC should ask the Veteran to identify all treatment for his hearing loss since November 2008. Regardless of the appellant's response, the AMC should attempt to obtain the May 2009 pure tone testing results from the Las Vegas VA Medical Center as well as any additional records from that facility since April 2010. Appellant's assistance should be requested as needed. Any obtained records should be associated with the appellant's claims file. 2. Thereafter, schedule the Veteran for an appropriate VA audiological examination to determine the nature and etiology of any current bilateral hearing loss. All indicated tests must be accomplished. The claims folder must be made available to the examiner. The examiner must opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that any current hearing loss in either ear is related to in-service noise exposure. If the Veteran does not have a current hearing loss disability under 38 C.F.R. § 3.385, the examiner should attempt to reconcile the findings on that examination and the March 2010 VA examination with the findings from the VA testing in May 2009. A complete rationale for any opinion offered must be provided. 3. The Veteran is to be notified that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After the development requested, the AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the AMC must implement corrective procedures at once. 5. Thereafter, the AMC must readjudicate the issue on appeal. If the benefit is not granted, the Veteran must be furnished with a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs