Citation Nr: 1410184 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 12-03 947 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a claimed bilateral hearing loss. 2. Entitlement to an initial rating in excess of 10 percent for the service-connected degenerative arthritis, bilateral knees, status post meniscus repair with scars. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. Venters, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the RO. In May 2013, the Veteran testified from the RO by way of videoconference technology at a hearing with the undersigned Veterans Law Judge. A transcript of the hearing is available on Virtual VA. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA and VBMS) claims file associated with the Veteran's claim. A review of the documents in such file reveals that certain documents, including the May 2013 hearing transcript, are relevant to the issue on appeal. Thus, the Board has considered these electronic records in its adjudication of the Veteran's case. The issue of whether new and material evidence has been received to reopen the previously denied claim of service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers the matter to the attention of the AOJ for any indicated action. The issue of an increased, initial rating in excess of 10 percent for the service-connected degenerative arthritis, bilateral knees, status post meniscus repair with scars is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The currently demonstrated bilateral sensorineural hearing loss disability is shown as likely as not to have had its clinical onset due to the Veteran's exposure to excessive noise level incident to his duties while in service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by a sensorineural hearing loss is due to disease or injury that was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a Veteran's active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). While the September 2010 opinion is against the Veteran's claim, the Board still finds that service connection for bilateral hearing loss is warranted in this case. To the extent the September 2010 VA examiner found that the Veteran's bilateral hearing loss was not related to his military service, the opinion is of limited probative value as the Veteran's statements pertaining to continuity of symptomatology were not fully addressed. The Board notes that the absence of evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley, 5 Vet. App. 155, 159 (1993). In this case, the Board finds that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995). Indeed, the Veteran's statements as to when his bilateral hearing loss began are important and credible evidence going toward the matter of when the disability began. The Veteran maintains that his bilateral hearing loss began during service and is due to military noise exposure from jets and weapons fire. Such noise exposure is consistent with the circumstances of his service and is conceded by the Board. After carefully reviewing the entire record, the Board finds the evidence to be in relative equipoise in showing the current bilateral sensorineural hearing disability as likely as not had its clinical onset during service when the Veteran was exposed to excessive and harmful noise levels as described. Accordingly, in resolving all reasonable doubt in the Veteran's favor, service connection is warranted. ORDER Service connection for a bilateral sensorineural hearing loss is granted. REMAND Although the Board sincerely regrets the additional delay, after a review of the record, further development is required prior to adjudicating the Veteran's claim for an increased initial rating for the service-connected bilateral knee disability, currently rated as 10 percent disabling. The Veteran last underwent a VA examination of his knees in September 2010. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). Because there may have been a change in the Veteran's condition, the Board finds that a bilateral knee examination is needed to fully and fairly evaluate the Veteran's claim for increase. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The RO also should obtain copies of any outstanding records of treatment rendered the Veteran for his service-connected bilateral knee disability since service. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate action to contact the Veteran in order to obtain copies of any outstanding records referable to treatment rendered for the service-connected bilateral knee disability and associate them with the claims file. The Veteran should be notified that he may submit medical evidence or treatment records to support his claim. 2. The RO should then schedule the Veteran for a VA examination to determine the current nature and severity of the service-connected bilateral knee disability. In conjunction with the examination, the examiner must review the entire claims file, including a complete copy of this remand. Any indicated testing, to include X-ray studies, should be performed. All pertinent pathology should be annotated in the examination report. In particular, the examiner should identify any limitation of motion and any instability imposed by the Veteran's service-connected bilateral knee disabilities with a full description of the effect of these disabilities upon his ordinary activities. The examiner should fully describe any weakened movement, excess fatigability, and incoordination present. The examiner should set forth in the examination report all examination findings and the complete rationale for any conclusion reached. The findings and rationale should be reported in detail. 3. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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. 2013). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs