Citation Nr: 1307252 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 10-35 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a low back disorder, to include as secondary to a right knee disorder. 3. Entitlement to service connection for a breathing disorder claimed as secondary to tear gas, tuberculosis, and/or other chemical or environmental exposure. 4. Entitlement to a compensable initial disability rating for a hearing loss disability of the right ear. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1994 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). During the pendency of this appeal, the Veteran relocated, and his file was transferred to the Huntington, West Virginia RO. In November 2012, the Veteran testified before the undersigned Veterans Law Judge seated at the RO. 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 Veteran seeks service connection for a right knee disorder. During the development of his claim by the RO, he was afforded a July 2009 VA medical examination and opinion regarding his claim. See 38 U.S.C.A. § 5103A(d). This medical examination and opinion included review of the Veteran's service treatment records and the post-service treatment records within the file at that time. Subsequent to that opinion, however, the Veteran submitted additional private treatment records that were not previously considered by the VA examiner. These include a December 2012 clinical notation that concluded the Veteran had degenerative joint disease of the bilateral knees which "could be consistent with previous remote trauma as described." These records also include an MRI study and other relevant clinical findings regarding the Veteran's right knee. The Board finds that an addendum to the July 2009 VA medical examination and opinion report is required, as this opinion was rendered without review of this additional pertinent evidence. Therefore, remand is required in order for such an addendum to be obtained. Next, the Veteran has alleged that his low back disorder is caused or aggravated by his right knee disorder. Thus, adjudication of the Veteran's service connection claim for a low back disorder must be deferred, as this issue is inextricably-intertwined with the service connection claim for a right knee disorder being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Next, the Veteran seeks service connection for a breathing disorder claimed as secondary to tear gas, tuberculosis, and/or other chemical or environmental exposure during service. He first sought medical treatment for respiratory symptoms in January 1994, when he reported a productive cough and a runny nose. A viral upper respiratory infection was suspected, and he was given medication. In September 1994, the Veteran sought treatment for sore throat, headaches, nasal congestion, and productive coughing with dark green phlegm. His sinuses were also tender to palpation. Bronchitis and sinusitis were diagnosed, and he was given medication. He sought medical treatment in February 1996 for nasal congestion and a productive cough. He also reported body aches and a sore throat. Rhinitis was noted, and he was given medication. In September 1996, the Veteran was placed on a tuberculosis monitoring program and given prophylactic medication following a positive skin test. He was not noted, however, to have any history of exposure to active tuberculosis, or to have any signs or symptoms of tuberculosis. He did report a persistent cough which he stated he had had since he was "younger." On his April 1997 report of medical history, he noted a history of frequent or chronic colds and of sinusitis. Given this history of sinus-related symptoms in service, the Veteran was afforded an August 2009 VA examination. The claims file was reviewed in conjunction with the examination. Upon examining the Veteran and reviewing the claims file, the examiner concluded that Veteran's "strep throats, sore throats, and tonsillitis" in service were unrelated to his current diagnosis of mild bilateral maxillary sinusitis. Other than noting the time gap of 12 years between the Veteran's service separation and his examination, the examiner did not provide a rationale for this opinion. The examiner also did not address whether the Veteran's alleged tear gas, chemical, and environmental exposures caused any of his current respiratory complaints. Once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Hence, remand for a medical opinion addendum is required. Finally, the Veteran seeks a compensable initial rating for his hearing loss disability of the right ear. Review of the record indicates he was initially afforded a VA audiometric examination in July 2009, and then another in June 2010. At his November 2012 personal hearing, he testified that his hearing loss has worsened since that time. The Board finds the Veteran's testimony to be credible and consistent with the passage of time since his most recent VA examination. Therefore, another VA examination is warranted. VA is obligated to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A. Where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See 38 U.S.C.A. § 5103A(d); Chotta v. Peake, 22 Vet. App. 80, 84 (2008). Accordingly, the case is REMANDED for the following action: 1. Forward the claims folder, including a copy of this remand, to the examiner, if available, who conducted the July 2009 VA orthopedic examination of the Veteran's right knee. If that examiner is no longer available, a similar expert in orthopedic disorders should be requested to review the file. The Veteran need not be scheduled for an in-person examination unless such examination is found necessary by the medical expert to comply with the terms of this remand. Upon review of the claims file, to include the additional private treatment records received in January 2013, the examiner must provide an opinion, in light of all the service and post-service evidence of record, whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any current right knee disorder was incurred during active service, or whether arthritis was manifested to a compensable degree within a year thereafter. The examiner must specifically address the Veteran's assertions of an in-service injury to his right knee. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, that must be noted in the examination report, and a rationale provided for that conclusion. 2. Forward the claims folder, including a copy of this remand, to the examiner, if available, who conducted the August 2009 VA nasal and sinus examination of the Veteran. If that examiner is no longer available, a similar expert in nasal or respiratory disorders should be requested to review the file. The Veteran need not be scheduled for an in-person examination unless such examination is found necessary by the medical expert to comply with the terms of this remand. Upon review of the claims file, to include the additional private treatment records received in January 2013, the examiner must provide an opinion, in light of all the service and post-service evidence of record, whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any current nasal, sinus, or respiratory disorder was incurred during active service. The examiner must specifically address the Veteran's in-service nasal symptoms and diagnoses of sinusitis. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, that must be noted in the examination report, and a rationale provided for that conclusion. 3. Schedule the Veteran for a VA audiometric examination to determine the current severity of his service-connected hearing loss disability of the right ear. The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination. The examination must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. For each ear, pure tone audiometric thresholds, in decibels, should be recorded for each of the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz, as well as controlled speech discrimination testing (Maryland CNC) (reported in percentages of discrimination). In addition to identifying the appropriate objective test results, the examiner is asked to describe the functional effects caused by the hearing loss disability of the right ear. 4. After undertaking any additional development deemed appropriate, and giving the Veteran the full opportunity to supplement the record, readjudicate the claims for service connection for disorders of the right knee, low back, and respiratory system, and for a compensable initial rating for a hearing loss disorder of the right ear in light of all additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case, and should be afforded the applicable opportunity to respond before the record is returned to the Board for further review. 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). The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claim(s). See 38 C.F.R. § 3.655. 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). ____________________________________________ K. J. ALIBRANDO 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) (2012).