Citation Nr: 1322343 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 11-09 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Whether new and material evidence to reopen a claim of entitlement to service connection for sleep apnea has been received. 2. Whether new and material evidence to reopen a claim of entitlement to service connection for right hip bursitis has been received. 3. Whether new and material evidence to reopen a claim of entitlement to service connection for a lumbar spine disability has been received. 4. Whether new and material evidence to reopen a claim of entitlement to service connection for a depressive disorder has been received. 5. Entitlement to service connection for athlete's feet. 6. Entitlement to service connection for hypertension. 7. Entitlement to service connection for a left shoulder disability. 8. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 9. Entitlement to service connection for a sinus disability, to include as secondary to service-connected hay fever and allergies. 10. Entitlement to service connection for a headache disability, to include as secondary to service-connected hay fever and allergies. 11. Entitlement to service connection for erectile dysfunction. 12. Entitlement to service connection for a bilateral hearing loss disability. 13. Entitlement to service connection for tinnitus. 14. Entitlement to service connection for loss of smell, to include as secondary to service-connected hay fever and allergies. 15. Entitlement to an increased evaluation for right foot status post bunionectomy. 16. Entitlement to an increased evaluation for left foot status post bunionectomy. 17. Entitlement to an increased evaluation for hay fever and allergies. 18. Entitlement to an increased evaluation for left knee degenerative joint disease (DJD). 19. Entitlement to an increased initial evaluation for right knee osteoarthritis. 20. Entitlement to an effective date earlier than May 5, 2008, for the award of service connection for right knee osteoarthritis. 21. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran had active duty training from April to August 1984; he served on active duty from March 1988 to February 1998 and was discharged under conditions other than honorable. The period of active duty from September 1995 to February 1998 has been deemed a bar to VA compensation benefits. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In August 2012, the Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of the hearing is of record. The Board also notes that the U.S. Court of Appeals for Veterans Claims (Court) has held that a claimant is generally not competent to diagnose his own psychiatric disability. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). Hence, although the Veteran has claimed entitlement to service connection for PTSD, the claim has been expanded to include any acquired psychiatric disorder. Furthermore, since entitlement to service connection for a depressive disorder was previously denied in a February 2005 rating decision, new and material evidence must be received before VA considers the claim on the merits. Therefore, this issue is listed separately. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. The Board's disposition of the matters of entitlement to service connection for athlete's feet and entitlement to an earlier effective date for the award of service connection for right knee osteoarthritis is set forth below. The remaining issues on appeal 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. During the August 2012 Board hearing, prior to the promulgation of a decision in this appeal, the Veteran indicated that he wished to withdraw his appeal of the claim of entitlement to service connection for athlete's feet. 2. An unappealed October 2007 rating decision denied the Veteran's petition to reopen a claim of entitlement to service connection for right knee osteoarthritis. 3. No communication or evidence was received prior to May 5, 2008 which could be interpreted as an informal or formal claim to reopen the Veteran's previously disallowed claim of entitlement to service connection for right knee osteoarthritis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran as to the matter of entitlement to service connection for athlete's feet have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for an effective date earlier than May 5, 2008 for a grant of service connection for right knee arthritis have not been met. 38 U.S.C.A. §§ 5101(a), 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.156, 3.157, 3.400, 20.201 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Athlete's Feet The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(a). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing and include the name of the veteran, the applicable Department of Veterans Affairs file number, and a statement that the appeal is withdrawn. 38 C.F.R. § 20.204(b). In a February 2005 rating decision, the RO denied entitlement to service connection for athlete's feet. Thereafter, the Veteran perfected an appeal as to this issue; he also requested a hearing before a Member of the Board. During the Board hearing, he stated on the record that he wished to withdraw his appeal as to this issue only (Hearing Transcript (Tr.), pg. 2). This statement met the requirements of 38 C.F.R. § 20.204. As a result, no allegation of error of fact or law remains before the Board for consideration with regard to this issue. 38 C.F.R. § 20.204(c). Accordingly, the Board does not have jurisdiction to review this matter and it must be dismissed. Earlier Effective Date Claim Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). This claim arises from the Veteran's disagreement with the effective date assigned in connection with the grant of service connection for right knee osteoarthritis. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). In any event, the Veteran was provided information regarding the assignment of effective dates in May 2007 and June 2009 letters. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, affording VA examinations. The Veteran was also provided an opportunity to set forth his contentions during the hearing before the undersigned Acting Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, at the August 2012 prehearing conference and during the August 2012 hearing itself, the undersigned Acting Veterans Law Judge identified the issues on appeal (Transcript (Tr.), pg. 2). Information was also solicited regarding the issue on appeal, including the reasons why the Veteran believes he is entitled to an earlier effective date (Tr., pg. 24). Moreover, the hearing discussion did not reveal any evidence specific to this claim that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the appellant's claim for an earlier effective date. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the manner in which the Board hearing was conducted. As such, the Board finds that, consistent with Bryant, the undersigned Acting Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Analysis The Veteran argues that he is entitled to an effective date earlier than May 5, 2008 for the award of service connection for right knee osteoarthritis because he has had knee problems for years (Hearing Tr., pg. 24). For the reasons explained below, the Board finds that this claim must be denied. In October 2002, the Veteran submitted a claim of entitlement to service connection for a right knee disability. An April 2004 VA examination indicated that the Veteran had a diagnosis of right knee osteoarthritis. In a February 2005 rating decision, the RO denied the claim of entitlement to service connection because there was no evidence that the Veteran's right knee osteoarthritis was related to his active duty training or period of active duty from March 1988 to September 1995. The Veteran was notified of this denial in a March 2005 letter but did not appeal, and he did not submit new and material evidence within the one year appeal period. Therefore, this denial became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. On July 30, 2007, the Veteran submitted a response to a supplemental statement of the case (SSOC) raising additional issues that were not on appeal. Specifically, he indicated that he had pain in both of his knees. In an October 2007 rating decision, the RO determined that new and material evidence had not been received to reopen the claim of entitlement to service connection for a right knee disability. Meanwhile, the Board issued a decision on unrelated issues in March 2008. Although unclear, it appears the Board did not have a copy of the October 2007 rating decision and therefore referred the additional issues raised in the July 2007 correspondence to the RO for initial consideration. In a written statement received on May 5, 2008, the Veteran indicated that he had problems with both his knees with walking and going up and down stairs. Thereafter, in a written statement received on May 29, 2009, the Veteran and his representative indicated that he sought to reopen his claim for service connection for right knee disability secondary to service-connected left knee disability. VA treatment records dated following the October 2007 rating decision show continued complaints of left knee pain associated with degenerative joint disease. In January 2010 the RO obtained a VA examination in which the examiner opined that it was at least as likely as not that the Veteran's right knee disability was due to his service-connected left knee disability. In an April 2010 rating decision, the RO granted service connection for right knee arthritis and assigned a 10 percent evaluation from May 5, 2008. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. §§ 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of service connection and compensation based on a reopened claim will be, "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400. A "claim" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Additionally, under 38 C.F.R. § 3.155(a) (2012), the veteran or a representative of the veteran can file an informal claim by communicating an intent to apply for one or more VA benefits. See also 38 C.F.R. § 3.1(p) (2012). The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). In making all determinations, the Board must consider all of the evidence, including evidence received prior to any previous final decisions and the lay evidence of record. Hazan v. Gober, 10 Vet. App. 511 (1997); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, an application to reopen the previously denied claim for service connection for right knee osteoarthritis was received on July 30, 2007. The October 2007 rating decision became final, however, because no correspondence or evidence was received within one year of the mailing of that decision which constituted a notice of disagreement or new and material evidence sufficient to continue the Veteran's claim. See 38 C.F.R. §§ 3.156(b), 20.200 (2012). See also 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The Veteran's May 5, 2008 correspondence did not indicate that he disagreed with the October 2007 denial of service connection for a right knee disability. See 38 C.F.R. § 20.201 (2012). In this regard, the May 2008 correspondence failed to make any mention of the October 2007 denial; it also did not express any desire for appellate review. Instead, this correspondence merely identified continued complaints associated with the Veteran's right knee. Under these circumstances, the Veteran's May 5, 2008 correspondence indicated, at most, a desire to have his claim for service connection reopened. As regards the remaining record, to include VA treatment records dated following the October 2007 rating decision but before May 5, 2008, there is no informal or formal communication, or medical evidence, that could be construed as an application for benefits between the February 2005 final rating decision and May 5, 2008. See 38 C.F.R. §§ 3.155, 3.157(b)(1). There is also nothing that might constitute new and material evidence, as defined in 38 C.F.R. § 3.156, which would stay the closing of the Veteran's appeal. See 38 C.F.R. § 3.156(b). As noted above, evidence dated between the October 2007 rating decision and May 5, 2008 consists of lay statements by the Veteran concerning his right knee symptoms and contemporaneous treatment reports showing continued left knee complaints. There is nothing to suggest a medical nexus between the left and right knee. The Veteran does not argue that the October 2007 rating decision was not final or that he filed a petition to reopen the previously denied claim prior to May 5, 2008. Rather he argues that he has had right knee problems for many years. The Board acknowledges his ongoing complaints of right knee problems over the years; however, we are bound by the laws and regulations that apply to veterans claims. 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. §§ 19.5, 20.101(a) (2012). In this instance, the earliest possible effective date for the reopened claim is May 5, 2008. See 38 C.F.R. § 3.400(r). ORDER The appeal as to the issue of entitlement to service connection for athlete's feet is dismissed. Entitlement to an effective date earlier than May 5, 2008 for the award of service connection for right knee osteoarthritis is denied. REMAND All Claims In August 2010, the Veteran submitted authorization forms (VA Form 21-4142) to enable VA to obtain private treatment records from Drs. J. Jamieson, L. Zinkin, A. Ferrari, J. Levine, and T. Capotosta. It does not appear that any efforts were made to obtain these records. Pursuant to VA's duty to assist, on remand, the RO/AMC should make reasonable efforts to obtain these records. 38 U.S.C.A. § 5103(A) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(1) (2012). The claims file currently includes VA outpatient treatment records dated through March 2012 from the East Orange and Lyons VA Medical Centers (VAMCs); these records indicate the Veteran is receiving regular ongoing treatment at VA. Virtual VA reflects that a rating decision was issued in May 2013 awarding a temporary total evaluation for surgical or other treatment requiring convalescence (38 C.F.R. 4.30). The evaluation was effective March 29, 2013, the date of a right great toe arthroscopy. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hypertension VA regulations provide that the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2012). This must be confirmed by readings taken two or more times on at least three different days. The Veteran asserts that his hypertension began during service, noting that his blood pressure had always been on the high side (Hearing Tr., pg. 9). His service treatment records reflect that his blood pressure was 150/93 in March 1994 and 172/108 in October 1994. The claims file indicates that he was initially diagnosed with hypertension and prescribed medication in December 2005. Under these circumstances, the Board finds that a VA examination is warranted. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering a medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Given that the Veteran had diastolic blood pressure readings of 90 mm. or greater during service and a current diagnosis of hypertension, the Board finds it necessary to provide the Veteran with a VA examination and medical opinion. Left Shoulder Disability The Veteran asserts that he has a current left shoulder disability related to an injury he sustained in service when he overextended his arm during a martial arts tournament (Hearing Tr., pg. 7). His service treatment records reflect that he sustained left shoulder trauma in May 1989 and the assessment was left rotator cuff tendonitis. In November 1989, it was noted that there were no physical findings, but he would benefit from strengthening of the rotator cuff muscles. During periodic physical examinations conducted in October 1990 and February 1996, his upper extremities were clinically normal. Under these circumstances, the Board finds that a VA examination is warranted. Given that the Veteran had an injury to his left shoulder in service and asserts that he has residuals from this injury, the Board finds it necessary to provide the Veteran with a VA examination and medical opinion. McLendon, 20 Vet. App. at 83. Acquired Psychiatric Disorder, to include PTSD The Veteran asserts that he has PTSD as a result of service. Treatment records reflect varying diagnoses of depressive disorder with paranoid features, PTSD, impulse control disorder, adjustment disorder with depression, intermittent explosive disorder, major depressive disorder, and mood disorder with a note to rule out bipolar disorder. The Veteran's service treatment records are unremarkable for any complaints, treatment, or diagnoses related to a psychiatric disorder. At his November 1987 enlistment examination and periodic examinations conducted in October 1990 and February 1996, his psychiatric evaluation was normal. During a May 1999 VA examination, the Veteran denied any excessive stresses during service. During a September 2008 VA mental health evaluation, he reported that he witnessed a soldier get shot in the head and that several soldiers were killed by guerillas while stationed in the Philippines. During a May 2010 VA mental health evaluation, he reported witnessing buildings being blown up, people shot and killed, and carrying dead bodies. During an October 2011 mental health evaluation, he recalled being under mortar fire during the Gulf War. During an October 2011 War Related Illness and Injury evaluation, he reported witnessing people killed during a coup attempt in the Philippines and hearing explosions detonate while being in Turkey. He also reported receiving an article 15 prior to be separated from military service as one of his stressors. In a January 2012 PTSD stressor statement, the Veteran reported that his unit was involved in a mission during a coup attempt in the Philippines in November 1989. He said his unit was pinned in a building, requiring them to be rescued or need backup. He said no one was injured in his convoy. In 1989, while working the main gate at Clark Air Base, he said he was fired upon by someone off base and instructed to take cover in the gate shack. He said his coworker went off the installation and was shot dead. He reported that there were several incidents involving military members being killed while off base. He also said that his unit was responsible for providing armed escorts after a vehicle filled with GM employees was ambushed and they were killed. While in Turkey from November 1991 to March 1992, the Veteran reported that the Kurdish people were blowing up buildings and vehicles. One day, they found an explosive ordinance attached to a floating air balloon directed at one of their buildings. Another time, a building exploded while he was walking towards it. While in Saudi Arabia from March to December 1993, the Veteran reported that they received an alert, which turned out to be a false alarm. Shortly after leaving the base, the dormitory in which he was living exploded. During the Board hearing, the Veteran testified that he was stationed in the Philippines during a coup attempt in November 1989. He reported that his coworker was shot in the head and that his name was Colonel Rogey (ph). Americans were killed off base and they were on lock down a few times. He also worked as an armed escort, which put in him dangerous situations. In Turkey, he said a building was blown up by an explosive device and that it was very stressful. In Saudi Arabia, he said one night he was required to get up and put his weapons and go out into the sand. Hearing Tr., pgs. 10-11. Establishing entitlement to service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012). The regulations governing PTSD were amended, effective July 13, 2010. 75 Fed. Reg. 39843 -52 (July 13, 2010). Specifically, this amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a claimed stressor is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. Id. In this case, to the extent the Veteran's claimed stressors are related to hostile military or terrorist activity, there has been no development to determine whether the stressor is consistent with the places, types, and circumstances of his service. Furthermore, it is unclear whether the Veteran has a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125. In this regard, the Board points out that during a September 2008 VA mental health evaluation, he denied recurrent memories of prior trauma. A June 2010 psychology note indicates that criterion B (persistent reexperiencing of the traumatic event) was not met for PTSD. During an October 2011 War Related Illness and Injury evaluation, it was noted that he did not appear to re-experience any particular events or avoid events to the extent which they caused significant distress or impairment, however, further evaluation and treatment was recommended. Finally, to the extent he has been diagnosed with psychiatric disorders other than PTSD, the record is devoid of any opinion as to etiology. For these reasons, further development is needed. Sinus, headache, and loss of smell disabilities During the Board hearing, the Veteran suggested that his sinus, headache, and loss of smell problems were related to his service-connected hay fever and allergies (Hearing Tr., pg. 13). A disability may be found to be service connected on a secondary basis if the claimant demonstrates that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2012). In this case, the most recent VA examinations conducted in October and December 2009 indicated that the Veteran did not have any active nasal or pharyngeal disease. His sinuses were normal and there was no hypertrophy of the turbinates. Since then, an August 2010 CT scan of the sinuses revealed a deviated septum and mild scattered paranasal sinus mucosal thickening with obstruction of the sphenoethmoidal recesses and osteomeatal units bilaterally. In October 2010, Dr. Ferrari, a private physician, attributed the Veteran's chronic sinus disease and anosmia (loss of smell) directly to service; however, he did not offer a rationale for his opinion and it is unclear whether he reviewed the Veteran's claims file. The VA outpatient treatment records reflect that he was diagnosed with hypertrophy of the turbinates and underwent bilateral inferior turbinate reduction in January 2012. Due to the above developments, the Board finds that another VA examination is warranted. Given that the Veteran has been diagnosed with additional nasal and sinus disabilities, Dr. Ferrari's positive nexus opinion, and the lack of a medical opinion regarding the relationship between the claimed disabilities and his service-connected hay fever and allergies, the Board finds it necessary to provide the Veteran with a VA examination and medical opinion. McLendon, 20 Vet. App. at 83. Hearing Loss and Tinnitus The Veteran asserts that he has current hearing loss and tinnitus due to acoustic trauma during service. Specifically, he reports that he was exposed to gunfire as a military policeman during active duty with the Air Force (Hearing Tr., pg. 15). For the purpose of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold at any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater, or when speech recognition scores utilizing the Maryland CNC Tests are less than 94 percent. 38 C.F.R. § 3.385 (2012). The report of an August 2009 VA audiology examination reflects that the Veteran's hearing was within normal limits and did not meet the threshold requirements of 38 C.F.R. § 3.385. The examiner opined that the Veteran's reported tinnitus concomitant with "unpopped" sensation was consistent with his complaints of congestion. Since then, the Veteran submitted an October 2010 letter from Dr. Ferrari in which the private physician opined that the Veteran had hearing loss and tinnitus as direct result of his military service. The physician did not provide a rationale and it is unclear whether he reviewed the claims file. However, the audiology examination indicated that the Veteran met VA's threshold requirements for right ear hearing loss disability. Furthermore, a more recent September 2011 VA audiology consultation reflects that he met VA's threshold requirements for both right and left ear hearing loss disability. Due to the above developments, the Board finds that another VA examination is warranted. Given that the more recent evidence of bilateral hearing loss disability and Dr. Ferrari's positive nexus opinion, the Board finds it necessary to provide the Veteran with another VA examination and medical opinion. McLendon, 20 Vet. App. at 83. In addition, the Board notes that on September 2, 2010, the Department of Veterans' Affairs, Veterans Benefits Administration issued Fast Letter 10-35. The subject was: Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus. That letter, introduced the Duty MOS Noise Exposure Listing, a rating job aid for determinations regarding service connection of hearing loss and/or tinnitus. The Duty MOS Noise Exposure Listing is a compilation of Department of Defense-verified lists of military occupational specialties (MOSs) and the corresponding probability of hazardous noise exposure. The Fast Letter indicated that when a claim for hearing loss and/or tinnitus is received, the decision maker must review the claim for: Sufficient evidence of a current disability (including lay evidence); and evidence of hearing loss and/or tinnitus in service; or records documenting an event, injury, disease, or symptoms of a disease potentially related to an audiological disability. If there is no documented evidence of an in-service illness, injury, or event with which the claimed conditions could be associated, the Duty MOS Noise Exposure Listing will be considered. Based on the Veteran's records, each duty MOS or duty assignment documented will be reviewed for a determination as to the probability of exposure to hazardous noise on the Duty MOS Noise Exposure Listing. If the duty position is shown to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event. In such cases, where there is sufficient evidence of a current disability and the in-service exposure to hazardous noise is conceded based on the Duty MOS Noise Exposure Listing, VA is obligated to request a VA examination and opinion to determine if there is a medical nexus. The level of probability of exposure conceded, such as "Highly Probable" or "Moderate," should be included in the information provided to the examiner in the body of the examination request. Finally, it was noted that the Duty MOS Noise Exposure Listing is not an exclusive means of establishing a Veteran's in-service noise exposure. Claims for service connection of hearing loss must be evaluated in light of all evidence of record in each case, including treatment records and examination results. In this case, the Veteran's DD 214 indicates that his primary duty title was "Security Journeyman." Although the Air Force does not list this specific job title, security forces are listed as having "moderate" probable exposure to hazardous noise during service. Hence, the Veteran's exposure to hazardous noise during service is conceded. Increased Rating Claims During the Board hearing, the Veteran reported that his bilateral knee and feet disabilities have worsened since the most recent VA examination (Hearing Tr., pgs. 21-22). Notably, the Board points out that the Veteran underwent right foot surgery in March 2013. Regarding the Veteran's hay fever and allergies, recent VA outpatient treatment records suggest that his symptoms have worsened since the most recent VA examination in October 2009. For these reasons, the Board finds that more contemporaneous medical findings are needed to evaluate the disabilities for which the Veteran is claiming entitlement to increased ratings. See 38 C.F.R. § 5103A; 38 C.F.R. § 3.159. See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination); and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous"). TDIU During the pendency of his appeal, the Veteran submitted a claim of entitlement to a TDIU, which was denied by the RO in a January 2012 rating decision. The Veteran did not appeal that decision. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a TDIU is "part of," and not separate from, a claim of entitlement to an increased rating. Id. at 453. Hence, consideration must be given as to whether a TDIU is warranted since the most recent adjudication of this issue in January 2012. Accordingly, the case is REMANDED for the following actions: 1. Obtain a full copy of the Veteran's military personnel file. All records and/or responses received should be associated with the claims file. 2. If necessary, request that the Veteran provide additional information, to include the date, place, and circumstances, surrounding his claimed stressors. Thereafter, and even if the Veteran fails to respond, the RO/AMC must request that the U.S. Army and Joint Services Records Research Center (JSRRC) attempt to verify his claimed stressors. Specifically, this must include, but is not limited to, the death of the Veteran's coworker (Colonel Rogey (ph) while he was in the Philippines, being fired on while at the main gate at Clark Air Base in 1989, the death of fellow soldiers during a coup attempt in the Philippines in November 1989, and witnessing the explosion of a building while he was stationed in Turkey. 3. After associating with the claims file all available records and/or responses received from each contacted entity, including the Veteran, and conducting any further development deemed necessary and appropriate, the RO/AMC should prepare a report detailing whether any of the claimed stressors is corroborated or, if related to the Veteran's fear of hostile military or terrorist activity, consistent with the places, types, and circumstances of his service. This report is then to be added to the Veteran's claims file. If the Veteran's claimed stressor is not corroborated or is not consistent with the places, types, and circumstances of his service, then the RO/AMC should so state in its report. 4. The RO/AMC should send to the Veteran and his representative a letter requesting that he provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims remaining on appeal. Specifically, request that he provide updated authorization forms necessary to allow the RO/AMC to attempt to obtain his private treatment records from Drs. J. Jamieson, L. Zinkin, A. Ferrari, J. Levine, and T. Capotosta. If the Veteran responds, the RO/AMC should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any requested records are not available, the Veteran should be notified of such. 5. Any pertinent VA or other inpatient or outpatient treatment records should be obtained and incorporated in the claims folder. This should specifically include any treatment records from the East Orange and Lyons VAMCs since March 2012. All records and/or responses received should be associated with the claims file. If any requested records are not available, the Veteran should be notified of such. 6. Following receipt of any outstanding treatment records, arrange for the Veteran to undergo VA examination for the purpose of determining the etiology of his hypertension. Any indicated diagnostic tests and studies must be accomplished. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. The examiner is asked whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension manifested in or is otherwise related to his active duty training or his period of active duty from March 1988 to September 1995. In rendering this opinion, consider the service treatment records showing elevated blood pressure in March and October 1994. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. 7. Following receipt of any outstanding treatment records, arrange for the Veteran to undergo VA examination for the purpose of determining the nature and etiology of any left shoulder disability. Any indicated diagnostic tests and studies must be accomplished. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. The examiner must identify any current left shoulder disability. Then, the examiner is to opine whether it is at least as likely as not (50 percent probability or greater) that the disability was incurred in or aggravated by the Veteran's active duty training or active duty active duty from March 1988 to September 1995. In rendering this opinion, consider the service treatment records showing left shoulder trauma in May 1989. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. 8. Following receipt of any outstanding treatment records, arrange for the Veteran to undergo VA examination for the purpose of determining the nature and etiology of any acquired psychiatric disorder, to include PTSD. Any indicated diagnostic tests and studies must be accomplished. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. The examiner must identify any current psychiatric disorders. The examiner should utilize the DSM-IV in arriving at any diagnoses and should explain whether and how each of the diagnostic criteria is or is not satisfied. If PTSD is diagnosed, the examiner must identify the stressor(s) supporting the diagnosis. Then, the examiner is to opine whether it is at least as likely as not (50 percent probability or greater) that the psychiatric disorder manifested during or is otherwise caused by the Veteran's active duty training or active duty from March 1988 to September 1995. Regarding PTSD, the examiner should only consider those stressors deemed verified by the RO/AMC, as delineated in a memorandum that is to be placed in the record. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. 9. Following receipt of any outstanding treatment records, arrange for the Veteran to undergo VA examination for the purpose of determining the nature and etiology of his claimed sinus disability. Any indicated diagnostic tests and studies must be accomplished. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. The examiner must identify any current disabilities of the sinuses. Then, the examiner is to opine whether it is at least as likely as not (50 percent probability or greater) that the disability was incurred in or aggravated by the Veteran's active duty training or active duty active duty from March 1988 to September 1995. In rendering this opinion, please consider and address Dr. Ferrari's October 2010 opinion. The examiner must also state whether any current sinus disability is at least as likely as not proximately due to or aggravated by the Veteran's service-connected hay fever and allergies. A response to both aspects of the secondary service connection claim must be provided. If aggravation is found, the examiner should identify the baseline level of severity of the nonservice-connected disability to the extent possible. Note: The term "aggravated" in the above context refers to a permanent worsening, beyond the natural progress, of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. 10. Following receipt of any outstanding treatment records, arrange for the Veteran to undergo VA examination for the purpose of determining the nature and etiology of his claimed headache disability. Any indicated diagnostic tests and studies must be accomplished. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. The examiner must identify any current headache disability. Then, the examiner is to opine whether it is at least as likely as not (50 percent probability or greater) that the disability was incurred in or aggravated by the Veteran's active duty training or active duty active duty from March 1988 to September 1995. In rendering this opinion, please consider and address Dr. Ferrari's October 2010 opinion. The examiner must also state whether any current headache disability is at least as likely as not proximately due to or aggravated by the Veteran's service-connected hay fever and allergies. A response to both aspects of the secondary service connection claim must be provided. If aggravation is found, the examiner should identify the baseline level of severity of the nonservice-connected disability to the extent possible. Note: The term "aggravated" in the above context refers to a permanent worsening, beyond the natural progress, of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. 11. Following receipt of any outstanding treatment records, arrange for the Veteran to undergo VA examination for the purpose of determining the nature and etiology of his claimed loss of smell. Any indicated diagnostic tests and studies must be accomplished. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. The examiner must identify any current disabilities involving the loss of smell. Then, the examiner is to opine whether it is at least as likely as not (50 percent probability or greater) that the disability was incurred in or aggravated by the Veteran's active duty training or active duty active duty from March 1988 to September 1995. In rendering this opinion, please consider and address Dr. Ferrari's October 2010 opinion. The examiner must also state whether any current loss of smell is at least as likely as not proximately due to or aggravated by the Veteran's service-connected hay fever and allergies. A response to both aspects of the secondary service connection claim must be provided. If aggravation is found, the examiner should identify the baseline level of severity of the nonservice-connected disability to the extent possible. Note: The term "aggravated" in the above context refers to a permanent worsening, beyond the natural progress, of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. 12. Following receipt of any outstanding treatment records, arrange for the Veteran to undergo VA examination for the purpose of determining the nature and etiology of any hearing loss and tinnitus. Any indicated diagnostic tests and studies must be accomplished. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. The examiner is instructed that there is a "moderate" probability that the Veteran was exposed to hazardous noise in service and that noise exposure is conceded. The examiner is requested to confirm whether the Veteran currently has hearing loss that meets the threshold requirements of 38 C.F.R. § 3.385 and tinnitus. If so, the examiner is to opine whether the disability is at least as likely as not (50 percent probability or greater) related to the Veteran's active duty training or active duty from March 1988 to September 1995, to include noise exposure therein. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. 13. Following receipt of any outstanding treatment records, but whether or not records are received, arrange for the Veteran to undergo VA orthopedic examination for the purpose of determining the current severity of his service-connected bilateral knee disabilities. Access to the claims file and Virtual VA must be made available to the examiner for review, if needed. Any indicated diagnostic tests and studies must be accomplished. The examiner should conduct a thorough orthopedic examination of the right and left knees and describe all associated symptomatology, to include any instability or subluxation. The examiner must document any limitation of motion, including any limitation of motion due to pain and any functional loss pertaining to each knee, including due to pain or weakness, and to document all objective evidence of those symptoms. In addition, the examiner must provide an opinion on the degree of any functional loss that is likely to result from a flare-up of symptoms or on extended use. The examiner should also document, to the extent possible, the frequency and duration of exacerbations of symptoms. 14. Following receipt of any outstanding treatment records, but whether or not records are received, arrange for the Veteran to undergo an appropriate VA examination for the purpose of determining the current severity of his service-connected bilateral foot disabilities. Access to the claims file and Virtual VA must be made available to the examiner for review, if needed. Any indicated diagnostic tests and studies must be accomplished. The examiner should conduct a thorough examination of the Veteran's right and left feet and describe all symptomatology associated with service-connected status post bunionectomies. The examiner should document any limitation of motion, including any limitation of motion due to pain and any functional loss pertaining to the each foot, including due to pain or weakness, and to document all objective evidence of those symptoms, including any related muscle atrophy. In addition, the examiner should provide an opinion on the degree of any functional loss that is likely to result from a flare-up of symptoms or on extended use. The examiner should also document, to the extent possible, the frequency and duration of exacerbations of symptoms. Finally, the examiner should comment on whether the Veteran's service-connected bilateral foot disabilities have resulted in loss of use of either foot. (Loss of use of a foot exists when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance). The medical basis for any opinion expressed and should be set forth. 15. Following receipt of any outstanding treatment records, but whether or not records are received, arrange for the Veteran to an appropriate VA examination for the purpose of determining the current severity of his service-connected hay fever and allergies. Access to the claims file and Virtual VA must be made available to the examiner for review, if needed. Any indicated diagnostic tests and studies must be accomplished. After a thorough examination, the examiner should describe all symptomatology associated with the Veteran's service-connected hay fever and allergies. Specifically, the examiner should comment on whether the hypertrophy of the turbinates, which resulted in surgery, was a result of the Veteran's hay fever and allergies. 16. Review the examination reports to ensure that they are in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 17. After the above has been completed to the extent possible, the RO/AMC should review the record and conduct any other development as may be indicated by the responses received as a consequence of the action taken in the preceding paragraphs. Specific to the claim of entitlement to a TDIU, the RO/AMC may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. If additional development is needed, such should be accomplished. 18. Upon completion of the above requested development and any additional development deemed appropriate, the RO/AMC is to readjudicate the issues remaining on appeal, to include entitlement to a TDIU due to service-connected disabilities. The RO/AMC should specifically consider and discuss whether the procedures for referral for consideration a TDIU on an extraschedular basis, pursuant to 4.16(b), is appropriate. All applicable laws, regulations, and theories of entitlement should also be considered, as well as any evidence received since the February 2012 statement of the case. If any benefit sought on appeal remains denied, the appellant and his representative, if any, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant 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). These claims 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). ______________________________________________ STEPHANIE L. CAUCUTT Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs