Citation Nr: 1414248 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 10-20 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a disability of the left foot, to include as secondary to service-connected residuals of left knee dislocation. 2. Entitlement to service connection for bilateral hearing loss disability. 3. Entitlement to service connection for tinnitus. 4. Entitlement to an initial rating in excess of 10 percent for residuals of left knee dislocation (left knee disability). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from December 1971 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for bilateral hearing loss, tinnitus, and left foot disability, and granted service connection for left knee disability. The Veteran appeared and testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in October 2011. A transcript of the hearing is associated with the Veteran's claims file. In addition to a paper claims file, the Veteran also has an electronic file in Virtual VA and/or VBMS. The Board has reviewed both the paper and electronic records in rendering this decision. The issues of entitlement to service connection for a left foot disability and entitlement to an increased rating for left knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is at least an approximate balance of positive and negative evidence as to whether the Veteran has a bilateral hearing loss disability as a result of active service. 2. There is at least an approximate balance of positive and negative evidence as to whether the Veteran has tinnitus as a result of active service. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the Veteran, a bilateral hearing loss disability was incurred during the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2013). 2. Resolving doubt in favor of the Veteran, tinnitus was incurred during the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he has bilateral hearing loss disability and tinnitus due to his significant noise exposure during service. His military occupational specialty (MOS) prior to discharge from service was indirect fire infantryman. First, the Board finds that the audiological examination dated in September 2009 shows a bilateral hearing loss disability for VA purposes. As such, the requirements of 38 C.F.R. § 3.385 are met. Thus, the question that remains before the Board is whether the Veteran's current hearing loss and tinnitus were caused or worsened by his military service. A review of the service treatment records shows no complaints of hearing loss or tinnitus. The induction and separation audiograms show some threshold shifts in bilateral hearing acuity. It appears that the Veteran's first post-service audiogram was performed in 1988, and he has had regular audiograms since. The Veteran was afforded a VA examination in September 2009. The examiner found that although the Veteran had a current bilateral hearing loss disability and tinnitus, they were less likely than not related to his military service. In reaching this conclusion, the examiner pointed to the fact that the Veteran's "hearing sensitivity did not significantly decline throughout service. Therefore, the current hearing loss was not caused by or aggravated by noise exposure incurred during military service." The examiner also indicated that the Veteran's complaints of tinnitus are "consistent with normal auditory function and are not consistent with the presence of tinnitus with an etiology of noise exposure." The Veteran testified that he first experienced bilateral hearing loss and tinnitus since service and they have continued since. His hearing has continually been monitored since as early as the late-1980s. He specifically reported in-service noise exposure from guns and mortars-all without the use of hearing protection. Upon careful review of the evidence of record, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's currently diagnosed bilateral hearing loss disability and tinnitus are related to his military service. First, tinnitus is a subjective disorder and identifiable primarily through a patient's report of symptoms, and as such, the Veteran is competent to diagnose tinnitus and to provide a statement as to when it began. The Veteran is also competent to report the onset of decreased hearing acuity in both ears. As his service duty MOS that of an indirect fire infantryman, it is highly probable that he was exposed to hazardous noise, and thus his exposure is conceded. As noted, the September 2009 VA examiner found that the Veteran's bilateral hearing loss and tinnitus were not caused by or a result of in-service noise exposure. However, the examiner's opinion was based solely on the fact that the Veteran's hearing acuity did not "significantly decline" during service. In light of this narrow rationale, the Board assigns the September 2009 VA examination report limited evidentiary weight. The Veteran has competently and credibly provided consistent statements regarding the onset of his bilateral hearing loss and tinnitus. As such, the Board will resolve all reasonable doubt in his favor and grant entitlement to service connection for bilateral hearing loss disability and bilateral tinnitus. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss disability is granted. Service connection for tinnitus is granted. REMAND The Board finds that further evidentiary development is necessary regarding the Veteran's service connection for a left foot disability and increased rating claim for his left knee disability. The Veteran most recently underwent a VA examination of the left knee, leg, and foot in October 2009. During the October 2011 hearing, the Veteran specifically testified that the symptoms of his left knee disability have worsened since his last VA examination. Where a veteran asserts that a disability has worsened since his/her last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c)(4). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). The Board finds that clearly the most recent VA examination is too remote and a new examination is warranted. With respect to the Veteran's left foot disability, he contends that it was either caused or aggravated by his service-connected left knee disability. The October 2009 VA examiner diagnosed the Veteran as having deep vein thrombosis in the left leg and opined that is "is not caused by or related to a remote patella dislocation." The examiner did not include an adequate opinion with respect to secondary service connection as an opinion on aggravation was not included. As such, this claim must be remanded for a new opinion. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should undertake appropriate development to obtain a copy of any outstanding records pertinent to the Veteran's claims. 2. Return the claims file to the October 2009 VA examiner to provide a supplemental opinion regarding the Veteran's claimed left leg/foot disability. If this examiner is not available, forward the claims files to a suitable substitute for a supplemental opinion. The examiner should review the claims file, including any pertinent evidence contained in his electronic files and provide the following opinion: Is it at least as likely as not (a 50 percent or better probability) that the Veteran's current left leg/foot disability was caused or permanently worsened by his service-connected left knee disability? It is left to the examiner's discretion as to whether the Veteran should be reexamined. The examiner is asked to provide a complete rationale for any opinions reached. 3. The RO/AMC should also arrange for the Veteran to be scheduled for a VA examination by an examiner with the sufficient expertise to ascertain the severity and manifestations of his service-connected left knee disability. The claims folders, and any pertinent evidence in an electronic format, must be made available to and reviewed by the examiner, and any indicated studies should be performed. The RO/AMC should ensure that the examiner provides all information required for rating purposes. The supporting rationale for all opinions expressed must be provided. 4. The RO/AMC should also undertake any other development it determines to be warranted. 5. Then, the RO/AMC should readjudicate the Veteran's claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be issued to the Veteran and his representative and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the 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). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs