Citation Nr: 1342014 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 10-38 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for a bilateral knee injury. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Caylor, Associate Counsel INTRODUCTION The Veteran had active military service from June 1974 to June 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. In August 2012, the Veteran testified at a travel board hearing before the undersigned Veteran's Law Judge. A transcript of the hearing has been associated with the claims file. The Board has reviewed the physical claims file and the Virtual VA electronic claims file The issues on appeal are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A. Right ear hearing loss. The Veteran contends he has right ear hearing loss that began during his active service as a field artillery crewmember and was caused by exposure to hazardous noise. See Medical History, March 2012 VA examination report. The Veteran underwent a VA compensation examination in March 2012. Upon objective examination, he had mild sensorineural hearing loss at 3,000 and 4,000 Hertz in his left ear and clinically normal hearing in his right ear. In August 2012, he testified that his right ear hearing had worsened since the examination and was "about the same" as his left ear hearing. Transcript of Record at 3 (August 30, 2012). Given these circumstances, the Board requests that VA provide the Veteran with a new examination and obtain a new opinion from an audiologist that addresses whether the Veteran currently has hearing loss in his right ear and, if so, whether any hearing loss is etiologically related to his active service. B. Bilateral knee injury. The Veteran contends he has a bilateral knee injury that is etiologically related to a June 1976 accident during which his knees hit an iron rail. Transcript of Record at 29, 31-33. VA has a duty to obtain a VA medical examination and opinion when required. 38 U.S.C.A. § 5103A(d) (West 2002). VA must provide a VA examination or obtain a medical opinion when the record (1) contains competent evidence that the claimant has a current disability or signs and symptoms thereof, (2) indicates that the disability or signs and symptoms thereof may be associated with active service, and (3) does not contain sufficient information to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In August 2012, the Veteran testified that following the June 1976 accident he spent one night in a hospital; that in 2011 his private primary care physician, Dr. R, assessed him with arthritis in his knees; that he had submitted statements from other servicemen who had witnessed the June 1976 accident; and that he has severe knee pain. Transcript of Record at 28-29, 32. His service treatment records (STRs) are unavailable and no witness statements or private treatment records are of record. The record contains competent evidence that the Veteran has signs and symptoms of a current disability. While the Veteran is not competent to provide an actual diagnosis, as the issue is medically complex and requires specialized training and knowledge, he is competent to report that Dr. R told him he had arthritis, as he has personal knowledge of the conversation, and to provide evidence of signs and symptoms of arthritis, such as severe pain, which is capable of lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The record also contains evidence that the Veteran's reported signs and symptoms may be associated with his active service. While his STRs are unavailable and no witness statements are of record, the Veteran is competent to provide evidence that he injured his knees during a June 1976 accident and was treated at a hospital, as he has personal knowledge of the events and they are capable of lay observation. Id. The record does not, however, contain competent medical evidence of either a current diagnosis or a nexus between any current knee injury and the Veteran's active service. Without such evidence, there is insufficient information to make a decision on the claim, as the Board does not have the medical expertise to determine the nature of his injury or whether it is attributable to the June 1976 accident. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is not competent to substitute its own opinion for that of a medical expert). Given these circumstances, the Board requests that VA obtain treatment records from Dr. R, contact the Veteran's representative regarding the absence of any witness statements, and then schedule the Veteran for a VA examination which addresses the nature and etiology of any current bilateral knee injury. Accordingly, the case is REMANDED for the following action: 1. First, undertake appropriate development to obtain any outstanding, pertinent medical records, to include from VA and Dr. R. 2. Second, contact the Veteran's representative to determine whether any witness statements were submitted, as reported by the Veteran during the August 2012 hearing. Please associate any attempts to obtain the statements with the claims file. 3. Then, provide the Veteran with an examination by an audiologist to determine the nature and etiology of any current right ear hearing loss. Provide the examiner with the claims file, including any pertinent evidence in Virtual VA that is not already in the claims file. The examiner should review the claims file and perform all indicated studies. The examiner should provide an opinion, based on examination results and the record, regarding whether it is at least as likely as not (a 50 percent or greater probability) that any current right ear hearing loss is related to an in-service injury, disease, or event. The opinion must contain a complete medical rationale. 4. Then, provide the Veteran with an examination by an examiner with sufficient expertise to determine the nature and etiology of any current bilateral knee injury. Provide the examiner with the claims file, including any pertinent evidence in Virtual VA that is not already in the claims file. The examiner should review the claims file and perform all indicated studies. The examiner should provide an opinion, based on examination results and the record, regarding whether it is at least as likely as not (a 50 percent or greater probability) that any current bilateral knee injury is related to an in-service injury, disease, or event, to include the 1976 accident. The opinion must contain a complete medical rationale. 5. Then, the RO or AMC should readjudicate the claims on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should receive a Supplemental Statement of the Case and an opportunity to respond. If necessary, the cases should then be returned to the Board for further appellate action. 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). _________________________________________________ JOHN Z. JONES 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) (2013).