Citation Nr: 1324452 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 12-08 048A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for a bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1955 to December 1956. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified before the undersigned in June 2013, and a transcript of this hearing has been associated with the Veteran's claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND A remand of the Veteran's claims is warranted. Although the Board regrets the delay associated with this remand, further development of the record is required before the Board may render a decision. With respect to the Veteran's claim for service connection for a bilateral knee disability, VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In May 2012, a private physician diagnosed the Veteran with knee arthrosis. The Veteran's service medical records are unavailable for review and are thought to be among those lost in the 1973 fire at the National Personnel Records Center in St. Louis, Missouri. The Veteran contends that the cumulative effects of repeated in-service running and jumping, along with an acute in-service episode in which he twisted his knee, caused his current disability. The Veteran has not been provided with a VA examination of his bilateral knee disability. Therefore, with evidence of a current disability; a possible in-service event, injury, or disease; and the Veteran's lay statements regarding the relationship between the in-service event and his current disability, the issue of service connection for a bilateral knee disability must be remanded for a VA medical opinion to determine whether the Veteran's claimed disability is etiologically related to service. 38 C.F.R. § 3.159(c)(4) (2012). With respect to the Veteran's claims for service connection for a bilateral hearing loss disability and tinnitus, due process requires that VA notify the Veteran prior to the adjudication of the claim of any inability to obtain evidence sought, including a VA examination with medical opinion. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007); Daves v. Nicholson, 21 Vet. App. 46 (2007); Green v. Derwinski, 1 Vet. App. 121 (1991); Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran received an audiological examination in August 2009. The examiner found that the relationship between the Veteran's military service and his hearing loss and tinnitus could not be determined without resort to speculation because audiometric information from the Veteran's service medical records was unavailable. The Veteran's service medical records are indeed unavailable for review. However, the Board finds that the examiner did not adequately consider the available evidence of record, including the contentions of the Veteran and his family, the length of time that has elapsed since the Veteran's active duty military service, and the findings of a November 2007 clinician that noted the Veteran's exposure to workplace noise. Accordingly, issues of service connection for a bilateral hearing loss disability and tinnitus must be remanded for an additional VA examination to determine whether the Veteran's claimed disability is etiologically related to service. 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the case is REMANDED for the following actions: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. 1. Schedule the Veteran for an examination of his bilateral knee disability with an examiner of appropriate expertise to determine the nature and etiology of the Veteran's bilateral knee condition. The examiner must review the claims file and must note that review in the report. After a discussion of the nature of the Veteran's bilateral knee condition, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral knee disability is etiologically related to service, to include the cumulative effects of repeated in-service running and jumping. The Board acknowledges that the Veteran's service medical records are unavailable for review. Therefore, the examiner must consider the other evidence of record, including the Veteran's lay statements, when rendering the opinion. 2. Schedule the Veteran for a VA audiological examination with an examiner of appropriate expertise, who has not previously examined him, to determine the nature and etiology of the Veteran's bilateral hearing loss disability and tinnitus. The examiner must review the claims file and must note that review in the report. After a discussion of the nature of the Veteran's bilateral hearing loss disability and tinnitus, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss and tinnitus disability are etiologically related to service, to include in-service noise exposure. Please assume that the Veteran currently has tinnitus and that the Veteran was exposed to loud noise in service. The Board acknowledges that the Veteran's service medical records are unavailable for review. Therefore, the examiner must consider the other evidence of record, including the Veteran's lay statements, when rendering the opinion. 3. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Veteran has the right to submit additional evidence and argument on the matters that 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 or the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).