Citation Nr: 1331666 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 10-25 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial rating in excess of 0 percent for bilateral hearing loss. 2. Entitlement to service connection for a right knee condition, including patellofemoral chondromalacia and degenerative joint disease. 3. Entitlement to service connection for a left knee condition, including patellofemoral chondromalacia and degenerative joint disease. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran had active service from December 1981 to June 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which granted service connection for bilateral hearing loss and assigned a 0 percent rating. The RO also denied service connection for bilateral knee conditions. The Veteran indicated on his VA Form 9 that he wished to receive a Board hearing via videoconference. This hearing was scheduled for August 2013. The Veteran was a no-show at this date. Thus, the Board finds that the Veteran, in effect, withdrew his hearing request by not showing up for his scheduled videoconference hearing and not requesting rescheduling prior to the date of the hearing or offering any reason for not appearing for the hearing. He also did not submit a motion for a new hearing within 15 days from the date of the scheduled hearing. Therefore, this claim will be processed as though the request for a hearing was withdrawn. See 38 C.F.R. § 20.702(d). The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. 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 United States Court of Appeals for Veterans Claims has held that when a Veteran alleges that his service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment, particularly if there is no additional medical evidence which addresses the level of impairment of the disability since the previous examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). VA's General Counsel has similarly indicated that when a Veteran asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995) (while the Board is not required to direct a new examination simply because of the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination). The Veteran's last VA audiological examination was in July 2008. In the Veteran's informal hearing presentation (IHP), his representative stated, "The [V]eteran contends that his bilateral hearing loss is worse than the current rating shows and warrants a higher evaluation." The representative also stated that the Veteran's last audiological examination was too old and thus inadequate for rating purposes. Liberally construed, the Board finds this to be a statement alleging a worsening of the Veteran's hearing since his last VA examination, which occurred over five years ago. Thus, a new VA examination should be scheduled. Regarding the Veteran's knee conditions, an addendum opinion is needed. Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The opinion must address all aspects of the Veteran's claim. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Additionally, the opinion must be supported and explained thoroughly. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Here, the Veteran was given a VA compensation and pension examination for his knees in July 2008. The examiner reviewed the Veteran's claims file prior to the examination and notes relevant instances of knee problems the Veteran experienced in service. The examiner diagnosed the Veteran with 1) patellofemoral chondromalacia, bilateral and 2) medial joint space degenerative joint disease, slight on right, moderate on left. Regarding the Veteran's right knee, the examiner concluded that because the Veteran had no diagnosis in-service of a right knee condition, "the Veteran's right knee diagnosis and findings are not related to the military." However, this statement does not comment on certain records in the Veteran's STRs that list bilateral knee pain as a symptom the Veteran suffered from. Furthermore, regarding the Veteran's left knee, the examiner did note that the Veteran was diagnosed with patellofemoral syndrome in 1995. However, the examiner opines that it is less likely than not that the Veteran's military service caused his left knee condition because "his symptoms regarding the left knee have not been ongoing to any significant degree" and "the left knee is not disabling and the symptoms are greater in the right knee than the left, even though the left knee x-ray shows a greater degree of arthritis." This reasoning is inadequate for two reasons. First, it contradicts what the examiner noted the Veteran reported to him regarding his current knee pain, namely that he felt pain when kneeling and lifting concrete on the job. While the Veteran did state that this was more prevalent in his right knee than his left, he did state he experienced symptoms occasionally in the left. Furthermore, the Veteran's STRs contain complaints of knee pain, the majority of which dealt with his left knee since at least 1985 and include a notation of "bilateral knee pain" on his retirement physical in 2002. These facts do not align with the examiner's statement that the Veteran's left knee symptoms have not been ongoing. Second, the comparison of left knee problems to that of the right is not relevant to whether the Veteran's current left knee diagnosis can be linked back to his time in the military. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiometric examination to ascertain the severity and manifestations of his bilateral hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. The examiner should comment on the severity of the Veteran's service-connected bilateral hearing loss and discuss the effect of the disability on his occupational functioning and daily activities. A clear rationale for all opinions should be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims file must be made available to the examiner for review. 2. Forward the Veteran's claims file to the examiner who performed the July 2008 compensation and pension examination for the Veteran's knees for an addendum opinion. The examiner must provide an opinion as to whether any identified condition in the Veteran's knees is at least as likely as not etiologically related to his military service. Following a review of the claims folder, to include the Veteran's STRs and statements in support of his claim, his private medical records, and the VA examination report of record, the examiner should address the following: A) Whether it is at least likely as not (50 percent or greater likelihood) that the Veteran's current right knee conditions, including patellofemoral chondromalacia and degenerative joint disease, originated during active service, within one year of service discharge, or are otherwise related to active service. B) Whether it is at least likely as not (50 percent or greater likelihood) that the Veteran's current left knee conditions, including patellofemoral chondromalacia and degenerative joint disease, originated during active service, within one year of service discharge, or are otherwise related to active service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather 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 causation as it is to find against it. The examiner should provide a clear rationale and basis for all opinions expressed. The examiner should also note in his or her opinion that a review of the claims file was conducted, and must discuss pertinent evidence within the claims file. Specifically, consideration must be given to the Veteran's in-service complaints of knee pain which started for the left knee in 1985 and is listed as "bilateral" on some of his later records, his in-service diagnosis of patellofemoral syndrome of his left knee, his competent, subjective complaints of knee pain at work, and his private treatment records. If it is the opinion of the examiner that the Veteran's knee disorders are the result of aging, post-service circumstances, or any other process not related to his time in service, a rationale must be provided to fully explain why the Veteran's current symptomatology is not consistent with a disorder that began in service. Specifically, if the examiner again opines that the Veteran's current left patellofemoral chondromalacia is not related to his in-service diagnosis of left patellofemoral syndrome, he or she must clearly articulate why, with consideration given to the evidence discussed above. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. If it is not possible or feasible to have this same VA examiner comment further, then have someone else equally qualified provide this necessary medical opinion, which may require having the Veteran reexamined, but this is left to the designee's discretion. 3. Next, review the medical examination reports obtained to ensure that the remand directives have been accomplished, and return the case to the examiner(s) if all questions posed are not answered. 4. Finally, readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time within which 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). _________________________________________________ P.M. DILORENZO 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).