Citation Nr: 1322107 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 06-12 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities. 3. Entitlement to an initial compensable rating for antral gastritis. 4. Entitlement to an effective date earlier than August 24, 2005, for the assignment of a 40 percent disability rating for lumbar paravertebral myositis (low back disability). 5. Entitlement to an effective date earlier than August 24, 2005, for the assignment of a 40 percent disability rating for residuals of a fractured right navicular bone with post-traumatic arthritis, status post surgery (right wrist disability). 6. Entitlement to an effective date earlier than August 24, 2005, for the assignment of a 40 percent disability rating for degenerative joint disease (DJD) and chondromalacia patella of the right knee (right knee disability). 7. Entitlement to an effective date earlier than August 24, 2005, for the assignment of a 30 percent disability rating for limitation of flexion of the left knee with DJD and chondromalacia patella (left knee disability). 8. Entitlement to an effective date earlier than August 24, 2005, for the assignment of a 10 percent disability rating for limitation of extension of the left knee with DJD and chondromalacia patella (left knee disability). 9. Entitlement to an effective date earlier than April 22, 2005, for the grant of service connection for PTSD. 10. Entitlement to special adapted housing or special home adaptation grant. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from September 1966 to September 1986. These matters come to the Board of Veterans' Appeals (Board) on appeal following July 2005, February 2007, February 2008, January 2009, and May 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Veteran is unrepresented in his appeal before the Board. In April 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ) sitting at the RO. A transcript of that hearing is of record. Associated with the hearing, the Veteran submitted additional evidence in support of his claims with a waiver of initial RO review. As such, the Board accepts the additional evidence for inclusion into the record on appeal. The Veteran, inter alia, filed a notice of disagreement (NOD) to a February 2007 rating decision and the denial of his claim for a compensable rating for service-connected bilateral tinea pedis, left foot wart status/post removal, and tinea ungulum. The RO subsequently issued the Veteran an SOC. The Veteran did not file a substantive appeal and as such the issue is not in appellate status. Also, in a February 2008 rating decision the RO denied the Veteran's claim for entitlement to special adapted housing or special home adaptation grant. In a May 2008 statement in support of claim (VA Form 21-4138), the Veteran made arguments concerning the denial of his claim. This included submitting a copy of the February 2008 rating decision with certain words highlighted in the RO's discussion. The Board notes that a written communication from a claimant expressing dissatisfaction or disagreement with an adjudicative determination by the RO and a desire to contest the result will constitute an NOD. 38 C.F.R. § 20.201 (2012). While special wording is not required, the NOD must be in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. In the present case, and without finding fault with the RO, the May 2008 statement is liberally construed as an NOD to the RO's denial of the claim of entitlement to special adapted housing or special home adaptation grant. A statement of the case (SOC) has not been issued in response to the Veteran's NOD. Likewise, in a May 2011 rating decision the RO granted service connection and assigned a 50 percent rating for PTSD effective April 22, 2005. In a June 2011 statement in support of claim, the Veteran requested that the effective date of the award for service connection be January 21, 2003. The Board liberally construes the Veteran's request as an NOD to the assigned effective date for the grant of service connection for PTSD. An SOC has not been issued in response to the Veteran's NOD. Finally, in reviewing the claims folders, the Board finds that in a November 2007 statement, the Veteran raised the issue of service connection for tinnitus. Furthermore, in the above June 2011 statement, the Veteran contended that his service-connected PTSD had worsened and he was requesting a higher rating. These issues have not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. (The claims for service connection for bilateral hearing loss and for hypertension, the claim for an initial compensable rating for antral gastritis, the claim for an effective date earlier than April 22, 2005 for the grant of service connection for PTSD, along with the claim of entitlement for special adapted housing or special home adaptation grant are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.) FINDINGS OF FACT 1. A September 2003 RO decision granted a single rating to 20 percent for a bilateral knee disability, denied a rating higher than 20 percent for a low back disability, and denied a rating higher than 10 percent for a right wrist disability. 2. The Veteran failed to timely perfect on appeal to the September 2003 RO decision. 3. New and material evidence was not received during the appeal period following the September 2003 RO decision; as such, the decision is final with respect to those issues. 4. An informal claim for a higher rating for the Veteran's service-connected low back disability and for his right knee disability was received by the RO on January 11, 2005, in the form of a VA outpatient treatment record. 5. There is reasonable doubt as to whether the medical evidence on January 11, 2005, but no earlier, supports a 40 percent rating for the Veteran's low back disability and for his right knee disability. 6. A formal or informal claim for a higher rating for a right wrist disability and/or left knee disability prior to August 24, 2005 has not been shown, nor is it factually ascertainable that higher ratings for those disabilities were warranted within the one-year period prior to August 24, 2005. CONCLUSIONS OF LAW 1. The criteria for an effective date to January 11, 2005, but no earlier, for the assignment of a 40 percent disability rating for lumbar paravertebral myositis have been met. 38 U.S.C.A. §§ 5110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.156(b), 3.157, 3.160, 3.400 (2012). 2. The criteria for an effective date earlier than August 24, 2005 for the assignment of a 40 percent disability rating for residuals of a fractured right navicular bone with post-traumatic arthritis, status post surgery, have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.160, 3.400 (2012). 3. The criteria for an effective date to January 11, 2005, but no earlier, for the assignment of a 40 percent disability rating for DJD and chondromalacia patella of the right knee have been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.160, 3.400 (2012). 4. The criteria for an effective date earlier than August 24, 2005 for the assignment of a 30 percent disability rating for limitation of flexion of the left knee with DJD and chondromalacia patella have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.160, 3.400 (2012). 5. The criteria for an effective date earlier than August 24, 2005 for the assignment of a 10 percent disability rating for limitation of extension of the left knee with DJD and chondromalacia patella have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.160, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in his/her possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The Board finds that all notification action needed to make a decision on the claims for earlier effective dates associated with the service-connected disabilities of the low back, right wrist, and knees have been met. Through a June 2006 notice letter, the Veteran was notified of the information and evidence needed to substantiate his claims for higher ratings for his low back, right wrist, and knees. The Board also finds that the June 2006 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the Veteran was notified that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his disabilities. Furthermore, in the June 2006 notice letter the RO provided the Veteran with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Also, no additional action is needed to comply with the duty to assist in connection with the claims the Board has decided below. Of record are the Veteran's service treatment records (STRs), as well as private and VA treatment records. VA has also provided the Veteran an opportunity to give testimony before the Board concerning his claims. The Veteran has submitted lay statements and has identified that he is not in receipt of Social Security Administration (SSA) disability benefits. Significantly, the Veteran has not otherwise alleged that there are any outstanding medical records probative of his claims being decided that need to be obtained. Furthermore, the outcome of the appeals for earlier effective dates being determined turns on a determination as to when a formal or informal claim for an increased rating was filed based on information and evidence associated with the claims folders. Therefore, there is no need for a medical examination and or opinion. Therefore, no further action under the VCAA is required. II. Effective Dates The Veteran contends that the effective dates for his disability ratings for his service-connected low back, right wrist, and knees, awarded in the February 2007 RO decision, should be September 26, 2000. In support of this contention, the Veteran alleges that since September 26, 2000 he has maintained constant written communication with VA with regard to prosecuting his claims for higher ratings for his service-connected orthopedic disabilities. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Furthermore, when determining the effective date for disability compensation, the regulations allow for an effective date up to one year prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within that one year period, otherwise date of claim. See 38 C.F.R. § 3.400(o)(2). When addressing the effective date for an award of increased compensation, as is the case here, the Board must determine when a claim for increased compensation was received and when a factually ascertainable increase in disability occurred. With respect to the first of these determinations, the Board notes that once a formal claim for VA benefits has been filed, a subsequent informal request for increase will be accepted as a claim. 38 C.F.R. § 3.155(c). Generally, the informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Additionally, VA or uniformed services medical records may form the basis of an informal claim for increased benefits where a formal claim for service connection has already been allowed. Under 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. Id. Otherwise, in the case of evidence from a private physician, date of receipt of any record or report will be accepted as the date of receipt of a claim. 38 C.F.R. § 3.157(b)(2). (Parenthetically, the purpose of § 3.157(b)(1) is to avoid requiring a veteran to file a formal claim for an increased disability rating where the veteran's disability is already service connected and the findings of a VA report of examination or hospitalization demonstrate that the disability has worsened. Although the language of § 3.157(b)(1) does not expressly require that a report of examination or hospitalization indicate that the veteran's service-connected disability worsened since the time it was last evaluated, any interpretation of § 3.157(b)(1) that does not include such a requirement would produce an absurd result. See Massie v. Shinseki, 25 Vet. App. 123, 134 (2011). Without such a requirement, every medical record generated by the Veterans Health Administration and received by VA that could possibly be construed as a report of examination would trigger the provisions of § 3.157(b)(1). This would unnecessarily burden VA by requiring it to treat every such medical record as an informal claim for an increased disability rating, even where a particular medical record shows no change in the veteran's condition. Massie, supra.) Also, 38 C.F.R. § 3.156(b) is intended to be a claimant-friendly provision that allows for the assignment of an effective date of the date of the original claim when certain requirements are met. See 72 Fed. Reg. 28,778 (May 22, 2007) (explaining that §§ 3.156(b) and 3.400 "provide a claimant-friendly effective date rule for awards based on evidence received while a claim is on appeal or before the appeal period expires"). See also 38 C.F.R. § 3.400(q) (providing that, as to new and material evidence received within the appeal period, "effective date will be as though the former decision had not been rendered"); Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011) (A claim becomes final and subject to a motion to reopen only after the period for appeal has run, and any interim submissions before finality found to be "new and material" must be considered by VA as part of the original claim). Low Back Disability By way of background, a September 1988 rating decision established service connection for lumbar paravertebral myositis. The disability was assigned an initial 10 percent disability rating. The RO issued the Veteran notice of his appellate rights, but he did not initiate an appeal; thus, the September 1988 decision is final. (A final decision is binding on the Veteran as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2012); see also Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006), citing Cook v. Principi, 318 F. 3d 1334, 1339 (Fed. Cir. 2002) (en banc)). The Veteran filed an increased rating claim for his low back disability in December 1997. In a June 1998 rating decision, the RO partially granted this claim by increasing the rating for lumbar paravertebral myositis from 10 to 20 percent. The RO issued the Veteran notice of his appellate rights but he did not initiate an appeal; thus, the June 1998 decision is final. In June 2000, the Veteran again filed a claim for an increased rating for his low back disability. In a November 2000 rating decision, the RO denied the Veteran's claim. The Veteran initiated an appeal by filing an NOD in April 2001. He also submitted additional medical records in support of his claim, which the RO considered in a February 20, 2002 SOC. The Veteran submitted a VA Form 9 (Appeal to Board of Veterans' Appeals) which was received on April 30, 2002. The VA Form 9 did not serve as a timely substantive appeal because it was over the allotted 60-day time period from the issuance of the SOC and also was more than a year from the appealed rating decision. Accordingly, in a June 2002 decision, the RO found the Veteran's submission of a VA Form 9 to be untimely, noting the appeal period lapsed on April 22, 2002. The Veteran was provided notice of his appellate rights with regard to the June 2002 decision but did not appeal. Thus, the Veteran failed to perfect an appeal to the November 2000 rating decision and it is final. Thereafter, in a September 2003 rating decision, the RO denied the Veteran a rating greater than the 20 percent then assigned for his low back disability. The Veteran submitted a timely NOD in October 2003 and in November 2004 submitted medical records associated with his treatment at the VA outpatient clinic (VAOPC) in Ponce. The records also appear to reflect treatment at the VA Medical Center (VAMC) in San Juan. The RO issued an SOC on December 30, 2004 which included review of the VAOPC Ponce/VAMC San Juan treatment records. Following the SOC, the Veteran failed to submit a substantive appeal/VA Form 9. Thus, the September 2003 rating decision is final. The Board notes that in April 2005, the Veteran submitted additional VA medical records from the VAMC San Juan. A number of the records pertained to the Veteran's treatment for his low back in the period following the September 2003 rating decision. The Board has considered whether such records are new and material evidence and provide a basis for the application of 38 C.F.R. § 3.156(b). Also, records generated by VA facilities that might have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators regardless of whether those records are physically in the claims folder. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Following a review of the records, the Board does not find them to be new and material. VA treatment records dated to November 8, 2004 were considered by the RO in its December 2004 SOC. See Jennings v. Mansfield, 509 F.3d 1362 (Fed. Cir. 2007) (Evidence received during the appeal period is to be considered as having been filed in connection with the original claim). VA records dated from November 9, 2004 to February 28, 2005 (60-days following the December 30, 2004 SOC) which the Board accepts as having been constructively in VA's possession during the appeal period, were not considered in the December 2004 SOC. The Board finds them to be cumulative of evidence previously considered by the RO. The records document the Veteran's complaints of intermittent exacerbations of pain, difficulty walking, and his use of a wheelchair and crutches. A December 2003 VA treatment record, considered by the RO in the December 2004 SOC, also notes the Veteran's complaint of low back pain, decreased activities of daily living (ADLs) and his use of Canadian crutches for ambulating. Jennings, supra. Therefore, the Board does not find that the records submitted by the Veteran in April 2005 and dated within the appeal period are new and material as they were either previously considered, not relevant to the Veteran's disability, or cumulative of evidence previously considered. See 38 C.F.R. § 3.156(a) (new and material evidence can be neither cumulative nor redundant of previous evidence considered). As the Board has determined that the VA records are not new and material evidence, consideration will now be given to whether any records dated from November 9, 2004 to August 24, 2005, are appropriately considered a claim for an increased disability rating. The Board notes that the Veteran's low back disability has resulted in intermittent exacerbations of pain, but evidence documents a chronic aching is present. Following a November 22, 2004 VA treatment record, in which the Veteran's range of motion with respect to his back was noted as intact, a January 11, 2005 VA treatment record documents the clinician's report that the Veteran appeared to have difficulty walking and that he was in pain. The Board liberally construes the January 11, 2005 VA treatment record as an informal claim for increase under 38 C.F.R. § 3.157(b)(1). Here, the Board has taken into consideration the complaints and treatment of the Veteran's low back since January 11, 2005 which appear to demonstrate a worsening of the low back disability on and after that date. Finding reasonable doubt in favor of the Veteran and notwithstanding the lack of range of motion findings in degrees associated with the thoracolumbar spine, a 40 percent rating is found warranted from January 11, 2005. Also, under the applicable law outlined above, an effective date prior to January 11, 2005 can be assigned if the evidence establishes that a factually ascertainable increase in disability occurred sometime during the one-year period preceding that date. 38 C.F.R. § 3.400(o)(2). At the time of the informal claim for increase on January 11, 2005 (and one year prior to that date), the criteria for General Rating Formula for Disease and Injuries of the Spine (effective from September 26, 2003) were in effect. A 40 percent disability rating was warranted when range of motion of the thoracolumbar spine was 30 degrees or less, or there was favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Also, a 40 percent rating was warranted for intervertebral disc syndrome based on incapacitating episodes that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Codes 5243. The evidence does not support that a factually ascertainable increase in the Veteran's low back disability during the one-year period prior to January 11, 2005 is warranted. The Board's grant of a 40 percent rating to January 11, 2005 is based on reasonable doubt. A review of the medical evidence during the one-year period prior to January 11, 2005 simply does not reflect range of motion of the thoracolumbar spine was 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes associated with disc disease that required bed rest prescribed by a physician. Therefore, a 40 percent disability rating is warranted from January 11, 2005, the date of the Veteran's informal claim for increase demonstrating that his low back disability had worsened. Massie, supra; 38 C.F.R. § 3.157(b)(1). The Board does not find that the medical evidence supports any earlier effective date. It is not factually ascertainable that a 40 percent rating for a low back disability was warranted during the one-year period prior to January 11, 2005. See 38 C.F.R. § 3.400(o)(2). With respect to the above, the Board is mindful that in the report of August 2003 VA examination, the Veteran reportedly commented that he had suffered a work-related low back injury in 2001 resulting in a lumbar herniated disc. Thus, a question arises concerning what symptomatology is solely associated with the Veteran's service-connected low back disability. Due to the difficulty in distinguishing the symptoms between the service-connected and nonservice-connected low back disability in this case, all low back symptoms will be attributed to the service-connected disability. See e.g., Mittleider v. West, 11 Vet. App. 181 (1998). Therefore, based on a review of the entire record, and the applicable laws and regulations, it is the Board's conclusion that an effective date to January 11, 2005 for the 40 percent disability rating for lumbar paravertebral myositis is warranted. The preponderance of the evidence, however, is against a finding of an effective date earlier than January 11, 2005. Right Wrist Disability By way of background, a September 1988 rating decision established service connection for residuals of fractured right wrist with post-traumatic arthritis, status-post surgery. The disability was assigned an initial 10 percent disability rating. The RO issued the Veteran notice of his appellate rights but he did not appeal; thus, the September 1988 decision is final. In June 2000, the Veteran filed a claim for an increased rating for his service-connected right wrist disability. In a November 2000 rating decision, the RO denied an evaluation greater than 10 percent for residuals of fractured right navicular bone with post-traumatic arthritis. The Veteran initiated an appeal by filing a timely NOD in April 2001; the RO responded by issuing an SOC on February 20, 2002. The Veteran then submitted a VA Form 9 on April 30, 2002, which did not serve as a timely substantive appeal because it was over the allotted 60-day time period from issuance of the SOC and also was more than a year from the appealed rating decision. Accordingly, in a June 2002 decision, the RO found the Veteran's submission of a VA Form 9 to be untimely, noting the appeal period lapsed on April 22, 2002. The Veteran was provided notice of his appellate rights with regard to the June 2002 decision but did not appeal. Thus, the Veteran failed to perfect an appeal of the November 2000 rating decision and it is final. In a September 2003 rating decision, the RO denied a rating greater than 10 percent for the right wrist disability. The Veteran submitted a timely NOD in October 2003 and in November 2004 submitted medical records associated with his treatment at the VAOPC Ponce. The records also appear to reflect treatment at the VAMC San Juan. The RO issued an SOC on December 30, 2004 which included review of the VAOPC Ponce/VAMC San Juan treatment records. Following this, the Veteran failed to submit a substantive appeal/VA Form 9, such that he did not perfect an appeal of his claim. Thus, the Veteran failed to perfect an appeal of the September 2003 rating decision and it is final. As noted above, in April 2005 the Veteran submitted additional VA medical records from the VAMC San Juan. Some of the records were dated during the appeal period and had not been considered by the RO. The Board notes that records generated by VA facilities that might have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators regardless of whether those records are physically in the claims folder. Bell, supra. The Board has considered whether the VAMC San Juan treatment records are new and material evidence with respect to the Veteran's right wrist disability claim and provide a basis for the application of 38 C.F.R. § 3.156(b). Here, the Board can discern only one treatment record that could be considered possibly relevant to the Veteran's claim. In a February 5, 2005 VA registered nurse (RN) ward screening for admission note, apparently associated with the Veteran's in-patient admission for his psychiatric disability, a musculoskeletal assessment reflected a checked box for "limited motion" without further discussion. A comments section listed numbness of the right leg and right hand. The Board finds that the information provided in the February 5, 2005 VA record, without more, is too vague for the record to be material evidence with regard to the Veteran's right wrist disability claim. Therefore, new and material evidence pertaining to the right wrist disability has not been received within the appeal period following the September 2003 rating decision. Otherwise, on June 8, 2005, the Veteran submitted a statement to the RO requesting clarification of his previous appeal and also noting that he would be willing to report for any necessary VA examination. On August 24, 2005, the Veteran submitted a written statement requesting a higher rating for his right wrist disability. In a February 2007 rating decision, the RO increased the Veteran's disability rating for his right wrist to 40 percent effective August 24, 2005. The Board's analysis begins with determining the date of the Veteran's claim for increase. Here, VA treatment records not associated with the final September 2003 appeal period but prior to the August 24, 2005 claim for increase do not reflect complaints or treatment for the Veteran's right wrist or a worsening of the disability. In light of this fact, the Board does not liberally construe the Veteran's June 8, 2005 statement, which does not identify his seeking a higher rating for his right wrist disability, as an informal claim. Otherwise, a claim for increase for a right wrist disability was first received on August 24, 2005. Therefore, the Board finds that the date of the Veteran's informal claim for a higher rating for a right wrist disability is August 24, 2005. Also, under the applicable law outlined above, an effective date prior to August 24, 2005 can be assigned if the evidence establishes that a factually ascertainable increase in disability occurred sometime during the one-year period preceding that date. 38 C.F.R. § 3.400(o)(2). The Veteran's right wrist disability is evaluated as 40 percent disabling for ankylosis of the wrist. See 38 C.F.R. § 4.71a, Diagnostic Code 5214. The medical treatment records associated with the claims folders dated during the one-year period prior to August 24, 2005 do not reflect clinical findings supportive of right wrist ankylosis. Because the evidence does not show that it was factually ascertainable that the Veteran's right wrist disability warranted a 40 percent rating during the one-year period prior to the present August 24, 2005 claim, the August 24, 2005 date of claim is the earliest possible effective date that can be assigned for the 40 percent rating. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Therefore, based on a review of the entire record, and the applicable laws and regulations, the preponderance of the evidence is against an effective date prior to August 24, 2005 for the 40 percent disability rating for residuals of a fractured right navicular bone with post-traumatic arthritis, status post surgery. Bilateral Knee Disabilities By way of background, a September 1988 rating decision established service connection for DJD of knees (patella). The bilateral disability was assigned a single 10 percent disability rating. The RO issued the Veteran his appellate rights, but he did not appeal; thus, the September 1988 decision is final. In June 2000, the Veteran filed a claim for an increased rating for his service-connected bilateral knee disabilities. In a November 2000 rating decision, the RO denied an evaluation for DJD of the knees greater than 10 percent. The Veteran initiated an appeal by filing a timely NOD in April 2001; the RO responded by issuing an SOC on February 20, 2002. The Veteran then submitted a VA Form 9 on April 30, 2002, which did not serve as a timely substantive appeal because it was over the allotted 60-day time period from issuance of the SOC and also was more than a year from the appealed rating decision. Accordingly, in a June 2002 decision, the RO found the Veteran's submission of a VA Form 9 to be untimely, noting the appeals period lapsed on April 22, 2002. The Veteran was provided notice of his appellate rights with regard to the June 2002 decision but did not appeal. Thus, the Veteran failed to perfect an appeal of the November 2000 rating decision and it is final. The RO proceeded to interpret the Veteran's statement on the April 30, 2002 VA Form 9 as a new increased rating claim for his knees. The RO then denied a rating greater than 10 percent for "DJD of the knees and chondromalacia patella of the right knee" in September 2002 and October 2002 rating decisions. The RO notified the Veteran of his appellate rights regarding both decisions, but the Veteran did not initiate an appeal of either decision and they became final. Thereafter, in a September 2003 rating decision, the RO granted a single rating of 20 percent for DJD of the knees and chondromalacia patella of the right knee, based upon the results of the August 2003 VA joints examination. The Veteran submitted a timely NOD in October 2003 and in November 2004 submitted medical records associated with his treatment at the VAOPC in Ponce. The records also appear to reflect treatment at the VAMC in San Juan. The RO issued an SOC on December 30, 2004 which included review of the VAOPC Ponce/VAMC San Juan treatment records. Following the SOC, the Veteran failed to submit a substantive appeal/VA Form 9. Thus, the September 2003 rating decision is final. As noted previously, in April 2005 the Veteran submitted additional VA medical records from the VAMC San Juan. A number of the records pertained to the Veteran's complaints and treatment for his right knee during the appeal period following the September 2003 rating decision. The records did not otherwise reflect the Veteran's complaints or treatment for his left knee. The Board has considered whether such records are new and material evidence and provide a basis for the application of 38 C.F.R. § 3.156(b). Also, records generated by VA facilities that might have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators regardless of whether those records are physically in the claims folder. Bell, supra. Following a review of the records, the Board does not find them to be new and material. VA treatment records dated to November 8, 2004 were considered by the RO in its December 2004 SOC. See Jennings, supra. VA records dated from November 9, 2004 to February 28, 2005 (60-days following the December 30, 2004 SOC) which the Board accepts as having been constructively in VA's possession during the appeal period, were not considered in the December 2004 SOC. As noted above, none of the records document treatment for the Veteran's left knee. With respect to the Veteran's right knee, the Board finds the records to be cumulative of evidence previously considered by the RO. The records document the Veteran's complaints of intermittent exacerbations of right knee pain, difficulty walking, and his use of a wheelchair and crutches. A December 2003 VA treatment record, considered by the RO in the December 2004 SOC, also notes the Veteran's complaint of persistent leg pain, decreased ADLs and his use of Canadian crutches for ambulation. Therefore, the Board does not find that the records submitted by the Veteran in April 2005 and dated within the appeal period are new and material as they were either previously considered, not relevant to the Veteran's disability, or cumulative of evidence previously considered. See 38 C.F.R. § 3.156(a) (new and material evidence can be neither cumulative nor redundant of previous evidence considered). As the Board has determined that the VA records are not new and material evidence, consideration will now be given to whether any records dated from November 9, 2004 to August 24, 2005, are appropriately considered a claim for an increased disability rating for either the right knee or the left knee. The Board notes that the Veteran's right knee disability is manifested by intermittent exacerbations of pain with loss of flexion. Following a November 22, 2004 VA treatment record, in which the Veteran's range of motion with respect to his right knee and back was noted as intact, a January 11, 2005 VA treatment record documents the clinician's report that the Veteran appeared to have difficulty walking and that he was in pain. The Board liberally construes the January 11, 2005 VA treatment record as an informal claim for increase under 38 C.F.R. § 3.157(b)(1). Here, the Board has taken into consideration the complaints and treatment of the Veteran's right knee since January 11, 2005 which appears to demonstrate a worsening of the right knee disability on and after that date. Finding reasonable doubt in favor of the Veteran and notwithstanding the lack of range of motion findings in degrees associated with the right knee, a 40 percent rating is found warranted from January 11, 2005. With respect to the left knee, as noted above, the VA treatment records dated from November 9, 2004 to August 24, 2005, do not reflect complaints or treatment for a the left knee or a worsening of the disability. On June 8, 2005, the Veteran submitted a statement to the RO requesting clarification of his previous appeal and also noting that he would be willing to report for any necessary VA examination. On August 24, 2005, the Veteran submitted a written statement requesting a higher rating for his knee disabilities. To recount, at the time, the Veteran was service-connected for a bilateral knee disability (DJD of both knees as well as chondromalacia patella of the right knee) and assigned a single rating of 20 percent for the bilateral disability. In a February 2007 rating decision the RO assigned a 40 percent rating for the Veteran's service-connected right knee disability (noted as DJD and chondromalacia patella of the right knee). The same decision also assigned separate ratings of 10 percent (for limitation of extension) and 30 percent (for limitation of flexion) of the left knee with DJD and chondromalacia patella. VA treatment records not associated with the final September 2003 appeal period but prior to the August 24, 2005 claim for increase, do not reflect complaints or treatment for the Veteran's left knee. In light of this fact, the Board does not liberally construe the Veteran's June 8, 2005 statement, which does not identify his seeking a higher rating for his left knee disability, as an informal claim. Otherwise, a claim for increase for a left knee disability was first received on August 24, 2005. Therefore, the Board finds that the date of the Veteran's informal claim for a higher rating for a left knee disability is August 24, 2005. Also, under the applicable law outlined above, an effective date prior to the established date of claim can be assigned for a disability if the evidence establishes that a factually ascertainable increase in disability occurred sometime during the one-year period preceding that date. 38 C.F.R. § 3.400(o)(2). The Veteran's right knee is evaluated for arthritis, chondromalacia patella, and limitation of extension of the joint, while his left knee is evaluated for arthritis, chondromalacia patella, and both flexion and extension of the joint. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260, and 5261. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, which in this case are found at Diagnostic Codes 5260 and 5261. Otherwise, Diagnostic Code 5003 provides no higher than a 20 percent rating based on X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. The RO has utilized 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261 in conjunction with Diagnostic Code 5003 in evaluating the Veteran's service-connected right and left knee disabilities. In particular, Diagnostic Code 5260 provides a 30 percent rating for flexion limited to 15 degrees. Diagnostic Code 5261 provides a 10 percent rating for extension limited to 10 degrees and a 40 percent rating for extension limited to 30 degrees. Id. As to the right knee, the medical treatment records associated with the claims folders dated during the one-year period prior to the January 11, 2005 effective date do not reflect range of motion of the right knee joint in degrees or evidence suggestive that a 40 percent rating is warranted for chondromalacia patella. The evidence, therefore, does not show that the Veteran had a factually ascertainable increase to 40 percent for his right knee disability (identified as DJD and chondromalacia patella of the right knee with limitation of extension) within the one-year period prior to the present January 11, 2005 claim. Thus, the date of claim, January 11, 2005 is the earliest possible effective date for the right knee disability. As to the left knee, the evidence dated during the one-year period prior to the August 24, 2005 effective date does not reflect do not reflect range of motion of the left knee joint in degrees or evidence suggestive that either a 10 percent or 30 percent rating is warranted for chondromalacia patella. Thus, the date of claim, August 24, 2005 is the earliest possible effective date for the left knee disability. Therefore, based on a review of the entire record, and the applicable laws and regulations, it is the Board's conclusion that an effective date to January 11, 2005 for the 40 percent rating for DJD and chondromalacia patella of the right knee is warranted. Also, an effective date of August 24, 2005 for the 30 percent rating for limitation of flexion of the left knee with DJD and chondromalacia patella and for the 10 percent rating for limitation of extension of the left knee with DJD and chondromalacia patella, is warranted. However, the preponderance of the evidence is against a finding of an effective date earlier than January 11, 2005 for the Veteran's right knee disability, or for an effective date earlier than August 24, 2005 for the Veteran's left knee disability. ORDER An effective date to January 11, 2005 for the assignment of a 40 percent disability rating for lumbar paravertebral myositis is granted. An effective date to August 24, 2005 for the assignment of a 40 percent disability rating for residuals of a fractured right navicular bone with post-traumatic arthritis, status post surgery, is granted. An effective date to January 11, 2005 for the assignment of a 40 percent disability rating for DJD and chondromalacia patella of the right knee is granted. An effective date to August 24, 2005 for the assignment of a 30 percent disability rating for limitation of flexion of the left knee with DJD and chondromalacia patella is granted. An effective date to August 24, 2005 for the assignment of a 10 percent disability rating for limitation of extension of the left knee with DJD and chondromalacia patella is granted. REMAND As discussed in the Introduction, above, in a February 2008 rating decision the RO denied the Veteran's claim for entitlement to special adapted housing or special home adaptation. In a May 2008 statement, the Veteran made arguments concerning the denial of his claim. Additionally, in a May 2011 rating decision the RO granted service connection and assigned a 50 percent rating for PTSD effective April 22, 2005. In a June 2011 statement, the Veteran requested that the effective date of the award for service connection be January 21, 2003. Without finding fault with the RO, the May 2008 and June 2011 statements are liberally construed as NODs to the denial of the claim of entitlement to special adapted housing or special home adaptation, as well as to the assigned effective date of April 22, 2005 for the grant of service connection for PTSD. No action appears to have been taken in response to the Veteran's NODs based on the Board's review of the claims folders and the Virtual VA electronic file. Thus, a remand of the claims is necessary to accord the RO an opportunity to issue an SOC and to accord the Veteran an opportunity to perfect an appeal to either issue. 38 C.F.R. § 19.9(c) (2012); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The claims should be returned to the Board if, after issuance of an SOC, the Veteran perfects a timely appeal of either claim by filing of a timely substantive appeal. Otherwise, the Board finds that medical examinations associated with the Veteran's claims concerning bilateral hearing loss, hypertension, and antral gastritis are warranted. Bilateral Hearing Loss Hearing loss that reaches threshold levels after service may be granted service connection. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In the present case, the Veteran served in Vietnam. He worked on helicopters and also flew as a crewmember. His DD Form 214 reflects his receipt of an Aircraft Crewman's Badge as well as an Air Medal. He contends that he was exposed to noise from helicopter machine gun and/or rocket fire. (CONTINUED ON NEXT PAGE) On audiological examination during service in May 1982, puretone thresholds, in decibels, were as follows: 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right Ear 5 db 10 db 10 db 10 db 15 db Left Ear 5 db 15 db 5 db 5 db 10 db On service audiological examination in March 1984, puretone thresholds, in decibels, were as follows: 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right Ear 10 db 15 db 5 db 10 db 20 db Left Ear 5 db 10 db 10 db 20 db 15 db During a separation audiological examination in June 1986, puretone thresholds, in decibels, were as follows: 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right Ear 30 db 20 db 10 db 10 db 20 db Left Ear 10 db 15 db 5 db 10 db 15 db Post service medical evidence reflects that the Veteran does suffer from mild to severe sensorineural hearing loss bilaterally. The Veteran's report of noise exposure in service is consistent with the type and circumstances of his service. While audiometric test results during service reflect an upward shift in tested puretone thresholds, they do not meet the requirements for a "disability" under 38 C.F.R. § 3.385 (2012). Thus, the puretone findings reflect evidence of what appears to be a worsening of the Veteran's hearing acuity in service. As such, the Veteran should be provided a VA audiological examination and the examiner asked to opine as to whether there is a medically sound basis to attribute the Veteran's current bilateral sensorineural hearing loss to an event or injury during service. Hypertension The Veteran contends that his hypertension is not related to service, but to service-connected disabilities. In a May 2008 letter, the Veteran related his hypertension as being secondary to his service-connected orthopedic disabilities. He commented that his orthopedic disabilities resulted in physical limitations which caused him to be depressed and anxious. A statement from the Veteran's daughter, dated in April 2008, noted that the Veteran's hypertension was due both to his physical and mental disabilities. Thus, the Board accepts that the Veteran's claim for secondary service-connection encompasses both his service-connected orthopedic disabilities and his service-connected PTSD. In a report of August 2008 VA examination, a VA examiner diagnosed the Veteran as having hypertension. The examiner commented that while an episode of high blood pressure could increase during an episode of acute pain, she was not aware of any literature that substantiated that any of the Veteran's service-connected musculoskeletal disabilities permanently elevated blood pressure or that the musculoskeletal disabilities caused or aggravated hypertension. Following the August 2008 VA examination, the Veteran was service connected for PTSD. Symptoms of PTSD include flashbacks, nightmares, and anxiety. VA has posted a document on its website entitled "PTSD and Physical Health" by Kay Jankowsi, Ph.D., created on January 1, 2007, that states: "A number of studies have found an association between PTSD and poor cardiovascular health." See http:// www.ptsd.va.gov/professional/pages/ptsd-physical-health.asp. Cardiovascular disease is a family of diseases that includes hypertension. Although the document from Ms. Jankowsi is considered generic and not necessarily specific to the Veteran's claim, such literature is relevant to the Veteran's claim and raises a possible connection between the Veteran's hypertension and service-connected disability. Here, in light of the Veteran's contentions, his grant of service connection for PTSD, and the document from Dr. Jankowsi on VA's website, the Board will exercise its discretion and remand this matter for an additional medical opinion concerning the etiology of the Veteran's hypertension. See e.g., Jones v. Shinseki, U.S. Vet. App. No. 10-3915 (April 13, 2012) (Noting remand was necessary to allow a VA examiner to consider Dr. Jankowsi's document based on the examiner's opinion that literature did not support a connection between hypertension and PTSD). (While the Board recognizes that a single-judge decision, such as Jones, carries no precedential weight, such a decision may be relied upon for any persuasiveness or reasoning it contains. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992).) Antral Gastritis The Veteran was last examined for his service-connected antral gastritis in August 2006, almost seven years ago. At that time, the report of examination identified antral gastritis on endoscopic evaluation. In March 2007 the Veteran was noted to seek VA treatment for recurrent stomach pain and watery diarrhea. The diagnosis included possible acute gastroenteritis. In his June 2010 VA Form 9 (Appeal to Board of Veterans' Appeals), the Veteran reported that he took medication three times a day, and that without the medication his stomach hurt and eating regular foods was impossible. At his April 2013 hearing, the Veteran testified that he continued to take medications before he ate. As of a March 2013 VA active medication listing, the Veteran was noted to be taking both Omeprazole and Sucralfate for his stomach. The Board is cognizant that evidence submitted between the date of a VA examination and the Board's review could, in particular instances, conceivably require that a new medical examination be provided, but the mere passage of time between those events does not. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); 38 U.S.C. § 5103A(d)(2). The requirement that the Secretary provide a thorough and contemporaneous examination is tied to those situations where the record does not adequately reveal the current state of a claimant's disability. See Caluza v. Brown, 7 Vet. App. 498, 505. Here, the Veteran has continued to complain of stomach-related symptomatology. The Board finds the record before it raises a question about the current severity of the Veteran's service-connected antral gastritis. Therefore, in light of the number of years since the Veteran was last examined as well as the evidence of record, the Board finds the Veteran should be afforded a VA examination to allow for a proper assessment of his current level of disability associated with antral gastritis. Furthermore, the Board does not find that the Veteran has not been adequately apprised of the rating criteria used for the basis of his noncompensable award for antral gastritis. No rating decision, SOC, or SSOC associated with the claims folders or Virtual VA has provided complete notice of or otherwise fully discussed the applicable rating criteria by which the Veteran's disability is evaluated. A review of the October 2007 SOC reflects only a single sentence reference to the rating criteria. In the document it is noted, "A noncompensable evaluation is assigned unless there are small nodular lesions and symptoms." No other document provides complete notice of the applicable regulation. Therefore, the Veteran should been provided the diagnostic code and applicable rating criteria by which his antral gastritis is evaluated. Accordingly, the claims are REMANDED for the following action: 1. Provide the Veteran with an SOC for the claims for entitlement to special adapted housing or special home adaptation grant, as well as an effective date earlier than April 22, 2005 for the grant of service connection for PTSD. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. If a timely substantive appeal is not filed, the claim should not be certified to the Board. If a timely substantive appeal is filed, the claim should be returned to the Board for further appellate consideration, as appropriate, and subject to the current appellate procedures. 2. Request that the Veteran identify any private or VA treatment he may have received for his bilateral hearing loss, hypertension, and/or antral gastritis. After obtaining the appropriate release of information forms where necessary, procure records of any treatment the Veteran has received. The Board is particularly interested in pertinent treatment records from the VAMC San Juan and from the VAOPC Ponce, dated from March 2013. If any such records identified by the Veteran are not available, he should be so informed in accordance with the provisions of 38 C.F.R. § 3.159(e). 3. After completion of the above (and allowing a reasonable amount of time to obtain any identified records), the Veteran should then be scheduled for examinations associated with his claims for bilateral hearing loss, for hypertension, and for antral gastritis. The claims folders must be made available to and be reviewed by each examiner in conjunction with each examination. Any testing deemed necessary should be performed. (The Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim or claims. 38 C.F.R. § 3.655 (2012)). Bilateral Hearing Loss The examiner is requested to obtain a detailed history of the Veteran's hearing loss and is also requested to review the record, in particular, the Veteran's service treatment records (which reflect a number of audiology tests), as well as a tabbed December 2004 VA audiology examination and a tabbed April 2006 statement regarding noise exposure in service. (See Volume 2 of the claims folders). Following audiological testing, the examiner should offer his/her opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), that any diagnosed hearing loss had its clinical onset during service or is otherwise related to service. Any opinion offered by the examiner must be supported by a thorough medical explanation. Hypertension All pertinent pathology should be annotated in the evaluation report. For any hypertension diagnosed on examination, the examiner should opine as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that any such diagnosed hypertension was caused or aggravated (permanent worsening of the underlying condition) by a service-connected disability, to include the Veteran's service-connected orthopedic disabilities and/or PTSD. Any opinion offered by the examiner must be supported by a thorough medical explanation. It is important that the examiner's evidentiary review include the report of August 2008 VA examination (See Volume 4 of the claims folders), as well as the document "PTSD and Physical Health" by Kay Jankowsi, Ph.D. In the document, Dr. Jankowsi states: "A number of studies have found an association between PTSD and poor cardiovascular health." See http:// www.ptsd.va.gov/professional/pages/ptsd-physical-health.asp) If the examiner determines that the Veteran has hypertension that was aggravated by service-connected disability, he or she should identify, if feasible, the baseline level of severity of the hypertension (established by medical evidence) (1) prior to the onset of aggravation, or (2) 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 hypertension. The Veteran's service-connected disabilities consist of disabilities of the right wrist, low back, right and left knees, as well as PTSD, tinea pedis, and antral gastritis. Antral Gastritis All manifestations of current disability should be described in detail, including any gastroenterological residuals found to result from the service-connected antral gastritis. The examiner must identify and explain the elements supporting the diagnosis of each gastrointestinal disability found to be present. Any opinion offered by the examiner must be supported by a thorough medical explanation. 4. Following the above development, readjudicate the remaining issues on appeal-entitlement to service connection for bilateral hearing loss and for hypertension, as well as a compensable rating for antral gastritis. If the benefit sought remains denied, the Veteran should be provided an SSOC and given an appropriate opportunity to respond. (The SSOC should include the diagnostic code and applicable rating criteria by which the Veteran's antral gastritis is evaluated.) The case should then be returned to the Board for further consideration, if otherwise in order. 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 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). ______________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs