Citation Nr: 1322877	
Decision Date: 07/18/13    Archive Date: 07/24/13

DOCKET NO.  07-18 438	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for sinusitis and allergic rhinitis.

2.  Entitlement to service connection for a bilateral knee disorder, to include as secondary to the service-connected right foot pes planus, left foot transmetatarsal amputation with left foot pes planus, residuals of a right ankle sprain with calcaneal spur, and residuals of a left ankle sprain with calcaneal spur.

3.  Entitlement to a compensable disability rating for the right ear hearing loss.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Shauna M. Watkins, Associate Counsel
INTRODUCTION

The Veteran served on active duty from April 1968 to July 1976.

The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from September 2006, December 2006, and April 2008 rating decisions of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the benefits sought on appeal.  The Veteran then perfected timely appeals of these issues.

The Veteran's Virtual VA records were also reviewed and considered in preparing this decision and remand.

The service connection issues 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.


FINDING OF FACT

Throughout the appeal, the Veteran's right ear hearing loss has been manifested by Level I hearing.


CONCLUSION OF LAW

The criteria for a compensable disability rating for the right ear hearing loss are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).  

I.  VA's Duties to Notify and Assist

Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

Prior to the initial adjudication of the Veteran's increased rating claim, a letter dated in February 2008 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187.  
The United States Court of Appeals for Veterans Claims (Court) held that to satisfy the first Quartuccio element for an increased-compensation claim, section 5103(a) compliant notice must meet a four part test laid out in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled the Vazquez-Flores in part, striking claimant-tailored and "daily life" notice elements.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  Thus modified, VA must notify the claimant that, 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation.  See Vazquez-Flores, 22 Vet. App. at 43, overruled in part sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  This action was accomplished by the February 2008 notice letter to the Veteran regarding his increased rating claim.  

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify. 

VA also has a duty to assist a Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained.  His STRs, personnel records, and post-service VA and private treatment records have been obtained.  The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disability currently on appeal.  Therefore, the Board does not need to make an attempt to obtain these records.  The Board does not have notice of any additional relevant evidence that is available but has not been obtained.  

The Veteran has also been afforded VA examinations for his claim.  The record is adequate and the need for a more contemporaneous examination occurs only when the evidence indicates the current rating may be incorrect.  38 C.F.R. § 3.327(a) (2012).  Here, the most recent VA compensation examination of the Veteran's bilateral hearing loss was in January 2012.  The report of that evaluation contains all findings needed to properly evaluate his disability.  38 C.F.R. § 4.2 (2012).  The evidence of record does not suggest that the Veteran's bilateral hearing loss has worsened.  Consequently, another examination to evaluate the severity of this disability is not warranted because there is sufficient evidence already of record to fairly decide this claim insofar as assessing the severity of the disability.  See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); Allday v. Brown, 7 Vet. App. 517, 526 (1995). 

With regard to the VA examinations of record, the Board calls attention to Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  In Martinak, the Court held that relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  Id.  In this regard, the January 2012 VA examiner specifically noted the Veteran's complaints that he has difficulty hearing and understanding conversational speech, particularly when located in noise.  The Board finds this statement adequately describes the functional effects of the Veteran's disability, as it demonstrates that the VA examiner elicited information from the Veteran about the effects of his disability.  Martinak, 21 Vet. App. at 455.

In this regard, the Board notes that the Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) (2012) in considering whether referral for an extraschedular rating is warranted.  Specifically, the Court noted that, "unlike the rating schedule for hearing loss, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted.  The VA Secretary's policy [requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application."  Id.  Therefore, the VA examination is not defective under Martinak.  21 Vet. App. at 455.    

For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, no further assistance to the Veteran with the development of evidence is required.

II.  Increased Rating Claim

Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations.  See 38 U.S.C.A. § 1155.  Separate DCs identify the various disabilities.  The assignment of a particular DC is dependent on the facts of a particular case.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  In reviewing the claim for a higher rating, the Board must consider which DC or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

The Board observes that an unappealed rating decision of March 2005 granted service connection for the Veteran's right ear hearing loss.  In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1  Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the "present level" of the Veteran's disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made.  Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran is currently in receipt of a noncompensable (0 percent) evaluation for his service-connected right ear hearing loss under DC 6100.  38 C.F.R. §§ 4.85, 4.86.

Disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  VA regulations require that an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  38 C.F.R. § 4.85.

The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  38 C.F.R. § 4.85.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  Id.  If, as here, impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I.  Id.  

























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38 C.F.R. § 4.85.

Furthermore, additional considerations apply in cases of exceptional patterns of hearing impairment.  Under the provisions of 38 C.F.R. § 4.86(a), when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  This provision does not apply in this case, since the Veteran has puretone thresholds below 55 decibels at some tested frequencies, and further discussion of 38 C.F.R. § 4.86(a) is not required.

In August 2009, the Veteran was provided a VA audiological examination.  The examination revealed the following puretone thresholds, in decibels:



HERTZ




1000
2000
3000
4000
Average
RIGHT
20
35
55
80
48

Using the Maryland CNC test, the speech recognition score for the right ear was 92 percent.  The mechanical application of the above test results compels a numeric designation of Level I in the right ear.  These results do not warrant the application of Table VIa under 38 C.F.R. § 4.86(a).  Consequently, the values from Table VI are used.  Under Table VI (38 C.F.R. § 4.85), the designation of Level I hearing in each ear requires the assignment of a 0-percent evaluation under DC 6100.  

In December 2010, the Veteran was provided a VA audiological examination.  The examiner found that no consistent puretone thresholds could be subjectively obtained from the Veteran for rating purposes, even with repeated instruction during the test procedures.  The examiner stated that the Veteran did demonstrate good speech discrimination at presentation levels at his best volunteered puretone thresholds.  Based on these results, the Board is unable to designate a level of hearing impairment under DC 6100.  

Accordingly, in January 2012, the Veteran was provided another VA audiological examination.  The examination revealed the following puretone thresholds, in decibels:



HERTZ




1000
2000
3000
4000
Average
RIGHT
20
40
55
90
51.25

Using the Maryland CNC test, the speech recognition score for the right ear was 92 percent.  The mechanical application of the above test results compels a numeric designation of Level I in the right ear.  These results do not warrant the application of Table VIa under 38 C.F.R. § 4.86(a).  Consequently, the values from Table VI are used.  Under Table VI (38 C.F.R. § 4.85), the designation of Level I hearing in each ear requires the assignment of a 0-percent evaluation under DC 6100.  

The treatment records in the claims file do not provide contrary results to those discussed above.  Thus, based on the VA examinations, the Board finds that the Veteran is not entitled to a compensable initial disability rating for his service-connected right ear hearing loss.  38 C.F.R. §§ 4.85, 4.86, DC 6100.  

The Veteran's lay testimony concerning the severity of his service-connected right ear hearing loss is not competent (as measuring hearing loss requires audiologic expertise) and, thus, is probatively outweighed by the objective credible VA medical findings to the contrary.  See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); see also 38 C.F.R. § 3.159(a)(2); Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see, too, Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (indicating the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence).

The Board has also considered whether staged ratings are appropriate in this case.  See Hart, 21 Vet. App. at 505; Francisco, 7 Vet. App. 55 (1994).  However, at no time during the relevant appeal period has the service-connected right ear hearing loss more nearly met or nearly approximated the criteria for a higher disability rating.  Accordingly, staged ratings are not for application in the instant case.

In sum, the preponderance of the evidence is against the assignment of a compensable disability rating for the service-connected right ear hearing loss at any time during the appeal period.  Thus, the claim is denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

III. Extraschedular and TDIU Consideration

The above determination is based on application of provisions of the VA's Schedule for Rating Disabilities.  38 C.F.R. Part 4 (2012).  However, the regulations also provide for exceptional cases involving compensation.  Pursuant to § 3.321(b)(1), the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. 
§ 3.321(b)(1). 

The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008). 

If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of a Veteran's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008). 

If the criteria reasonably describe the claimant's disability level and symptomatology, then a Veteran's disability picture is contemplated by the rating schedule.  The assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). 

Here, because the schedular rating of 0 percent for the Veteran's right ear hearing loss fully addresses his symptoms, which include mainly difficulty hearing, referral to the VA Under Secretary for Benefits or the Director of Compensation and Pension Service for consideration of an extraschedular evaluation is not warranted.  The evidence of record does not establish, and the Veteran does not contend, that his right ear hearing loss prevents him from being employed or that his right ear hearing loss has required frequent hospitalizations.  The record does not document any hospitalizations for his right ear hearing loss.  Additionally, the January 2012 VA examiner found that the Veteran's service-connected right ear hearing loss alone would have little if any effect on his employment options.  There are no contrary medical opinions in the claims file.  Thus, there is no evidence that the Veteran's service-connected disability causes impairment that is not contemplated by the schedular rating criteria or that renders impractical the application of the regular schedular standards.  See Thun, 22 Vet. App. at 111.  Accordingly, referral of this case for consideration of an extraschedular rating is not warranted.  Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996). 

Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record.  In this case, the issue of unemployability is not raised by the record.  The Veteran has not alleged that he is unemployable due solely to his service-connected right ear hearing loss.  The January 2012 VA examiner found that the Veteran's service-connected right ear hearing loss alone would have little if any effect on his employment options.  There are no contrary medical opinions in the claims file.  Therefore, consideration of a TDIU is not warranted. 


ORDER

Entitlement to a compensable disability rating for the right ear hearing loss is denied.


REMAND

Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the remaining claims can be properly adjudicated.   

Initially, regarding the sinusitis and allergic rhinitis claim, the Board finds that a VA addendum medical opinion is needed before the claim can be decided on the merits.  The Veteran was afforded VA examinations and medical opinions in May 2006 and June 2012.  Following physical examinations of the Veteran and reviews of the claims file, both VA examiners provided negative nexus opinions.  Upon reviewing these medical opinions, the Board finds them to be inadequate.  Specifically, the May 2006 VA examiner found that the Veteran's sinus disorder was best characterized as allergic rhinitis, and not sinusitis.  In this regard, in providing the negative nexus medical opinion, the VA examiner did not address the in-service diagnosis of allergic rhinitis on the June 1975 examination.  Instead, the examiner stated that the Veteran's service treatment records (STRs) only contained upper respiration infection (URI) complaints.  This rationale is incorrect.  Additionally, the May 2006 VA examiner found that there was no documentation of chronic sinusitis in the STRs.  However, the STRs contain a notation of "chronic low-grade sinusitis" in November 1969.  Further, the June 2012 VA examiner provided a negative nexus opinion and reasoned that there was only one documentation of suspected sinusitis in the STRs.  This statement is incorrect, as sinusitis is documented on two occasions in the STRs.  Further, neither VA examiner addressed the Veteran's lay statements or the private medical opinions of record in forming their medical opinions.  Thus, the Board finds these VA medical opinions to be inadequate and a VA addendum medical opinion is needed before the claim can be decided on the merits.

Second, regarding the bilateral knee disorder claim, the Board finds that a VA addendum medical opinion is needed before the claim can be decided on the merits.  The Veteran was afforded VA examinations and medical opinions in July 2006 and June 2012.  Following physical examinations of the Veteran and reviews of the claims file, both VA examiners provided negative medical nexus opinions regarding the causation aspect of secondary service connection (i.e., whether his current bilateral knee disorder is due to or caused by his service-connected feet and/or ankles).  The Board finds these VA medical opinions to be inadequate because neither VA examiner addressed the aggravation aspect of secondary service connection.  38 C.F.R. § 3.310 (2012).  The Court held that the phrases "caused by" and "related to" do not address the aggravation aspect of secondary service connection.  Allen v. Brown, 7 Vet. App. 439, 449 (1995).  The Veteran asserts that his bilateral knee disorder was caused by or aggravated by his service-connected feet and/or ankles.  Therefore, this VA medical opinion is essential to the Veteran's bilateral knee disorder claim, and must be obtained.  Further, a VA medical opinion on the issue of direct service connection (i.e., whether the Veteran's current bilateral knee disorder was incurred in or related to his active military service) has not been obtained.  38 C.F.R. § 3.303 (2012).  As the Veteran asserts in part that his bilateral knee disorder is directly related to his active military service, the Board finds that this medical opinion is also necessary to the claim.

For the aforementioned reasons, the Board finds these VA medical opinions to be inadequate.  Therefore, VA addendum medical opinions must be obtained upon remand.  See Barr, 21 Vet. App. at 311(2007) (once VA undertakes to provide a medical opinion, it must provide one that is adequate).  The Veteran is hereby notified that it is his responsibility to report for any examination scheduled in connection with this REMAND at whatever location it is scheduled, and to cooperate in the development of his case.  The consequences of failure to report for a VA examination may include denial of his claims.  38 C.F.R. §§ 3.158, 3.655 (2012).

Finally, the Veteran's most recent, pertinent outpatient treatment records from the VA Medical Center (VAMC) in North Texas Health Care System are dated since June 2012, as shown in his Virtual VA claims file.  Upon remand, pertinent records since June 2012 must be obtained and associated with the claims file.  See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1); Loving v. Nicholson, 19 Vet. App. 96, 101-03 (2005).

Accordingly, the case is REMANDED for the following actions:

1.  Obtain all pertinent VA outpatient treatment records from the North Texas Health Care System VAMC since June 2012 that have not been secured for inclusion in the record.

Ensure that the Veteran has not been recently treated by any other local VAMCs.

If no new records are associated with the claims file, a written determination should be included in the claims file.

2.  The RO/AMC shall ask the June 2012 VA examiner to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for a VA examination with an appropriate expert to determine the etiology of his currently diagnosed sinusitis and allergic rhinitis.  The VA examiner should thoroughly review the Veteran's VA claims file, to include his STRs, as well as a complete copy of this Remand in conjunction with the examination.  The VA examiner should note that this action has been accomplished in the VA examination report.  The VA examiner is requested to specifically address the following:

a)  Is it at least as likely as not that the currently diagnosed sinusitis had its onset in or is otherwise related to active military service?  In forming the medical opinion, the examiner should consider the following: the November 1969 in-service diagnosis of "chronic low-grade sinusitis," the February 1970 in-service diagnosis of frontal sinusitis, the multiple in-service complaints of nasal congestion and colds, and the November 2006 and February 2007 private medical opinions.  

b)  Is it at least as likely as not that the currently diagnosed allergic rhinitis had its onset in or is otherwise related to active military service?  In forming the medical opinion, the examiner should consider the following: the diagnosis of allergic rhinitis on the June 1975 in-service examination, the multiple in-service complaints of nasal congestion and colds, and the November 2006 and February 2007 private medical opinions.  

The term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion.

In forming his or her opinion, the VA examiner is asked to consider the Veteran's lay statements regarding the progression of the disorder, and comment on whether the Veteran's statements make sense from a medical point of view.  

Any opinion expressed by the VA examiner should be accompanied by a complete rationale.  If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized.  If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.  The VA examination report prepared must be typed.

3.  The RO/AMC shall ask the June 2012 VA examiner to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for a VA examination with an appropriate expert to determine the etiology of his currently diagnosed bilateral knee disorder.  The VA examiner should thoroughly review the Veteran's VA claims file, to include his STRs, as well as a complete copy of this Remand in conjunction with the examination.  The VA examiner should note that this action has been accomplished in the VA examination report.  The VA examiner is requested to specifically address the following:

a)  Is it at least as likely as not that the currently diagnosed bilateral knee disorder had its onset in or is otherwise related to active military service?  In forming the medical opinion, the examiner is asked to consider the October 2005, November 2006, and February 2007 private medical opinions.

b)  Is it at least as likely as not that the Veteran's current degenerative joint disease of the bilateral knees manifested to a compensable degree within one year of the Veteran's military discharge in 1976?  In forming the medical opinion, the examiner is asked to consider the October 2005, November 2006, and February 2007 private medical opinions.

c)  Is it at least as likely as not that the currently diagnosed bilateral knee disorder was aggravated beyond the normal progress of the disorder by his service-connected right foot pes planus, left foot transmetatarsal amputation with left foot pes planus, residuals of a right ankle sprain with calcaneal spur, and/or residuals of a left ankle sprain with calcaneal spur?    

The term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., diagnosis, etiology) as it is to find against the conclusion.

In forming his or her opinion, the VA examiner is asked to consider the Veteran's lay statements regarding the progression of the disorder, and comment on whether the Veteran's statements make sense from a medical point of view.  

Any opinion expressed by the VA examiner should be accompanied by a complete rationale.  If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized.  If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.  The VA examination report prepared must be typed.

4.  After the above actions have been completed, readjudicate the Veteran's claims.  If the claims remain denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC).  Afford them the appropriate period of time within which to respond thereto.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court 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).



______________________________________________
WAYNE M. BRAEUER 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs