Citation Nr: 1318394 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-38 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating in excess of 20 percent for bilateral hearing loss. 2. Entitlement to a rating in excess of 40 percent for degenerative disk and joint disease of the lumbar spine, associated with Reiter's syndrome. 3. Entitlement to a rating in excess of 30 percent for degenerative disk and joint disease of the cervical spine, associated with Reiter's syndrome. 4. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee, associated with Reiter's syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran had active military service from November 1968 to May 1973. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The May 2008 rating decision denied entitlement to an evaluation in excess of 20 percent for bilateral hearing loss, and denied entitlement to an evaluation in excess of 40 percent for Reiter's syndrome. During the pendency of the appeal, a September 2009 rating decision discontinued the 40 percent rating for Reiter's syndrome, effective June 18, 2007, the date the Veteran filed his current claim for an increased rating, and his single 40 percent evaluation for Reiter's syndrome was replaced by three separate ratings: degenerative disk and joint disease of the lumbar spine associated with Reiter's syndrome, evaluated as 40 percent disabling; degenerative disk and joint disease of the cervical spine associated with Reiter's syndrome, evaluated as 30 percent disabling; and degenerative joint disease of the left knee associated with Reiter's syndrome, evaluated as 10 percent disabling. As such, the issues on appeal are as listed on the title page of this decision. In the May 2013 Appellant's Brief, it was asserted that the Veteran's bilateral hearing loss now also causes vertigo. The issue of entitlement to service connection for vertigo, to include as secondary to service-connected hearing loss, has not been adjudicated by the RO, nor developed for appellate consideration. As such, it is not for consideration by the Board at this time, and is referred to the RO for appropriate action. 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 entitlement to a rating in excess of 20 percent for his service-connected bilateral hearing loss. The Veteran was last provided with a VA audiology examination in January 2009. In the May 2013 Appellant's Brief, it was asserted that the Veteran's bilateral hearing loss had increased in severity since his January 2009 VA examination. A Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Since it is alleged that the Veteran's hearing loss has worsened since the last examination, and because the VA examination is now over four years old, the Board finds that another VA examination to determine the extent of the Veteran's service-connected bilateral hearing loss would be helpful to the Board in adjudicating the Veteran's claim. The Veteran also seeks increased ratings for the disabilities related to his Reiter's syndrome. The Board notes that the Veteran was last provided with a VA examination for these disabilities in December 2008, at which time his lumbar spine was noted to be "extremely symptomatic" while his cervical spine and left knee were noted to be "moderately symptomatic." Although the examiner indicated that the Veteran had continuous pain for 20 years that radiated into his lower extremities and occasionally into his upper extremities, the examiner did not provide any diagnoses of radiculopathy. In his October 2009 substantive appeal, the Veteran indicated that the pain that radiated down into his extremities was being ignored by VA, and that he was entitled to an increased evaluation because of that. Moreover, in the Veteran's May 2013 Appellant's Brief, his representative emphasized that, although the VA examiner noted that the Veteran's lumbar spine disability was "very symptomatic," pain upon motion was not addressed during range of motion testing. When 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). Since the Veteran alleges that his December 2008 VA examination was inadequate because the examiner failed to provide a diagnosis for the radiculopathy-like symptoms described or discuss the degree at which pain begins during range of motion testing, and because the VA examination is now approaching five years old, the Board finds that another VA examination to determine the extent of the Veteran's service-connected cervical spine, lumbar spine, and left knee disabilities would be helpful to the Board in adjudicating the Veteran's claims. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for the disabilities at issue since 2006, and complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for the identified treatment records, for each medical treatment provider identified, to include examination, treatment, physical therapy, surgical, and emergency room visits. After obtaining completed VA Forms 21-4142, attempt to obtain all identified pertinent medical records. The RO must also attempt to obtain treatment records from the VA Palo Alto Health Care System from October 2008 to the present. If no records are available, the claims file must indicate this fact. 2. Schedule the Veteran for a VA examination to determine the current extent of his service-connected bilateral hearing loss. The claims file must be provided to the examiner for review in conjunction with the examination. The examination must include appropriate audiometric and speech discrimination testing of both ears. After examining the appellant and obtaining the results of all diagnostic testing deemed necessary, the examiner should provide a discussion of the effect of the Veteran's service-connected hearing loss disability on his occupational functioning and daily activities in the report. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). In addition, the examiner, preferably an otolaryngologist, is asked to opine as to whether a diagnosis of vertigo or other disability manifested by dizziness can be rendered, and, if so, whether such disability is at least as likely as not (50 percent probability or greater) aggravated by or otherwise related to the Veteran's service-connected hearing loss. 3. Schedule the Veteran for a VA examination to determine the extent of his cervical spine, lumbar spine, and left knee disabilities, to include any radiculopathy of the extremities. The examiner should perform all necessary diagnostic tests, to include range of motion testing which details the degree at which pain is noted, and report all clinical manifestations in detail. The claims file should be reviewed in conjunction with such examinations and the examination reports should indicate that such a review was performed. All opinions expressed should be accompanied by complete rationales. 4. After undertaking any other development deemed appropriate, the RO should readjudicate the issues on appeal. If any benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the Veteran and his representative with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration as warranted. The appellant has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ U. R. POWELL 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).