Citation Nr: 1325482 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 00-01 091 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 30 percent for a left knee disability for the period beginning March 1, 2005. 2. Entitlement to an initial rating in excess of 10 percent for gastritis, periesophogeal hernia and prior history of perforated ulcer. 3. Entitlement to service connection for hearing loss. 4. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from April 1996, December 2004, and August 2008 rating decisions issued by the Regional Office (RO) in Pittsburgh, Pennsylvania. The left knee claim was previously before the Board and was remanded for additional development in September 1999, August 2001, April 2006, and June 2009. The Veteran's claim for service connection for hearing loss and tinnitus was previously before the Board and was remanded for additional development in April 2006 and June 2009. The Veteran testified at a hearing before a Veterans Law Judge regarding his knee claim in May 2001. The Veterans Law Judge who conducted that hearing is no longer employed at the Board. The Veteran was thereafter offered an opportunity for another hearing, but at that time he declined. However, he did request a hearing with respect to his claim for an increased rating for gastritis. He did not appear for the scheduled hearing, nor did he request a postponement or indicate that there was good cause for his failure to appear. Therefore, the Board considers his request withdrawn. The Veteran's representative indicated that the Veteran wanted to claim service connection for a psychiatric disorder in its May 2013 brief. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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's last examination for his gastritis in March 2008 and for his left knee in May 2010. In his April 2013 statement, the Veteran stated that his gastritis was worse. The Veteran submitted a private treatment record dated in August 2009 which suggested that his gastrointestinal condition may have worsened. Treatment records after that date indicate that the Veteran reported that his knee pain had been getting progressively worse. More recent treatment records reflect continued complaints of bilateral knee pain. In light of evidence that gastritis and left knee are worse, new VA examinations to determine the current severity of both disabilities are needed. With respect to the Veteran's claims for service connection for hearing loss and tinnitus, the Veteran was afforded a VA examination to discern the etiology of his claimed hearing loss and tinnitus in May 2010. However, the examiner did not provide an adequate rationale for his conclusion that the Veteran's hearing loss was not related to service. Specifically, he made the conclusory statement that the Veteran's hearing loss was not due to service because the Veteran's hearing was normal at separation. This alone, without further explanation, is insufficient. The examiner did not explain the medical basis for his determination that the mere fact that there was no hearing loss at separation meant that the Veteran's hearing loss was not due to noise exposure in service. See Ledford v. Derwinski, 3 Vet. App. 87 (1992). The examiner associated the Veteran's tinnitus with his hearing loss, so those issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board also notes that the Veteran has claimed that he is receiving Social Security Administration (SSA) disability benefits; an attempt should be made to obtain those records. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's SSA disability records, if available. If these records do not exist or are otherwise unavailable, the efforts made to obtain the records should be documented in the claims file, and the Veteran should be notified of VA's inability to obtain the records. 2. Afford the Veteran a new gastrointestinal examination. The claims file should be reviewed in conjunction with the examination. The examiner should fully document all symptoms and functional effects of the Veteran's gastrointestinal disability. The examiner should also specifically indicate whether the Veteran's gastritis is characterized by multiple small eroded or ulcerated areas and symptoms. 3. Afford the Veteran a new VA examination of his left knee. The claims file should be reviewed in conjunction with the examination. The examiner should fully document all symptoms and functional effects of the Veteran's left knee disability, including any pain or weakness. Range of motion should also be provided, before and after repetition. 4. Afford the Veteran a new audiological examination. The claims file should be reviewed in conjunction with the examination. The examiner should indicate whether it is at least as likely as not (at least 50 percent likely) that the Veteran's hearing loss and tinnitus are related to his military service. A complete rationale for the examiner's conclusions must be provided. The examiner is advised that a conclusory statement that the Veteran's hearing loss was not documented in service is insufficient; rather, the examiner must explain the medical principles behind his or her conclusions in relation to the facts, including the lay history provided by the Veteran. 5. After completion of the above development, the Veteran's claims should be re-adjudicated. If the determinations remain unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. 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). _________________________________________________ CHERYL L. MASON 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).