Citation Nr: 1324409 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 09-22 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant; Appellant's spouse ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from November 1977 to November 1980. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office that denied service connection for a right knee disorder, bilateral hearing loss, and tinnitus. The Veteran testified at a hearing before the Board by videoconference from the RO in April 2013. A transcript of the hearing is associated with the claims file. A review of the Virtual VA and Veterans Benefits Management System paperless claims processing systems does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran served as a U.S. Army fuel specialist. He contends that he experiences residuals of a right knee injury in service and that he experiences hearing loss and tinnitus caused by exposure to machinery noise while refueling aircraft and vehicles in the field. After a review of the record, the Board concludes that VA orthopedic and audiometric VA examinations and a review of VA outpatient records since 2007 are necessary to decide the claim. 38 C.F.R. § 3.159 (c) (2012). VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2)(West 2002), 38 C.F.R. § 3.159(c)(4)(i)(2012). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Further, VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Bell v. Derwinski, 2 Vet. App. 611 (1992) Right Knee Service treatment records show that the Veteran was treated for a possible knee strain following a football game in March 1980. A clinical examination was normal; no X-rays were obtained. The Veteran was prescribed an analgesic balm and warm soaks. There was no follow-up treatment and no mention by the Veteran or examiners of any residual symptoms on physical examinations at discharge in October 1980 or on a reenlistment examination after service in September 1981. A VA magnetic resonance image of the right knee obtained in February 2003 showed a meniscus tear and patellar joint effusion. There are no concurrent clinical notes to indicate the reason for the imaging study. However, in a September 2007 outpatient encounter, a VA physician noted the Veteran's report of another injury in service while jumping into a moving vehicle, some form of right knee injury while incarcerated or under detention for four years from 2003 to 2007, another right knee injury in May 2007, and another right knee twisting injury just prior to the treatment encounter. The Veteran underwent arthroscopic surgery to repair a right knee meniscus tear in December 2007 and continues to receive VA outpatient treatment. The RO scheduled a right knee examination in May 2012 but the Veteran did not appear. In an April 2013 Board hearing, the Veteran stated that he did not receive notice of the examination which was mailed to an old address. An October 2012 supplemental statement of the case had to be re-mailed to a new address. The Veteran described the football and vehicle injuries in service but denied any post-service injuries prior to his surgery. As there is credible evidence of a current disability, some lay and medical evidence of in-service injury, and an indication of a relationship between the two, the low threshold for an examination has been met. Resolving all doubt regarding the receipt of notice for the previous examination in favor of the Veteran, a VA rescheduled orthopedic examination of the right knee is necessary to decide the claim. Hearing Loss and Tinnitus Service records confirm the Veteran's report of his military occupation as a field fueling specialist with likely exposure to vehicle and aircraft engine operations. The Veteran was not in combat or a combat occupation. Audiometric examinations in 1980 and 1981 showed normal hearing acuity with no reports by the Veteran of tinnitus. At the Board hearing, the Veteran and his spouse stated that they observed his difficulty hearing conversations since discharge from active service and that he developed tinnitus in 2007. The Veteran also stated that he had a hearing test in 2007, was told of deficiencies in his right ear, but only underwent ear cleaning. The most recent VA outpatient records in the file are dated in 2007 but do not show complaints, testing, or treatment for hearing loss or tinnitus. As there is credible lay evidence of an observable hearing deficiency and previous testing, the likely exposure to machinery noise in service and an indication of a relationship between the two, the low threshold for an examination has been met. Resolving all doubt regarding the receipt of notice for the previous examination in favor of the Veteran, a VA orthopedic examination of the right knee is necessary to decide the claim. Accordingly, the case is REMANDED for the following action: 1. Request all records of VA outpatient treatment since October 2007 and associate all records received with the claims file. 2. Provide the Veteran and his representative the opportunity to identify and submit or authorize the recovery of additional relevant evidence. 3. Then, schedule the Veteran for a VA orthopedic examination of his right knee. Request that the examiner review the claims file and note the review in an examination report. a. Request that the examiner provide a clinical assessment of the right knee including all indicated imaging studies and provide a current diagnosis, if any. b. Request that the examiner review the Veteran's reports of two knee injuries in service, one of which is documented in the service records, and the 2003 and 2007 VA records of imaging, examination, and surgery following several post service right knee injuries. c. Request that the examiner provide an opinion whether any current right knee disorder is at least as likely as not (50 percent probability or greater) caused or aggravated by the reported injuries or any other aspect of service. d. The examiner must provide the reasons for the opinion or why an opinion cannot be provided such as inadequate evidence, shortcomings in the state of medical knowledge, or lack of experience or training by the examiner. 4. Schedule the Veteran for a VA audiometric examination. Request that the examiner review the claims file and note the review in an examination report. a. Request that the examiner perform a VA organic ear and audiometric examination and provide a current assessment and diagnosis for tinnitus and any measured hearing acuity deficits. b. Assuming that the Veteran was exposed to machinery noise from military vehicles and aircraft, request that the examiner provide an opinion whether it is at least as likely as not (50 percent probability or greater) that any loss of hearing acuity or tinnitus was caused or aggravated by exposure to machinery noise or any other aspect of service. c. The examiner must provide the reasons for the opinion or why an opinion cannot be provided such as inadequate evidence, shortcomings in the state of medical knowledge, or lack of experience or training by the examiner. 5. Thereafter, readjudicate the claims for service connection for a right knee disorder, bilateral hearing loss, and tinnitus. If any benefit sought is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and afford an appropriate opportunity to respond. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).