Citation Nr: 1415380 Decision Date: 04/08/14 Archive Date: 04/15/14 DOCKET NO. 12-27 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a compensable rating for status post left inguinal hernia surgery with scar. 2. Entitlement to an initial, compensable rating for bilateral hearing loss. 3. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Mary M. Long, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from August 1967 to August 1969, to include service in the Oklahoma National Guard. These matters come to the Board of Veterans' Appeals (Board) following an appeal of a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In January 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a videoconference hearing. A transcript of that hearing is of record. The Veteran has submitted additional evidence directly to the Board with a waiver of initial RO consideration. The evidence is accepted for inclusion into the record on appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND By way of history, in June 1970 the RO granted service connection and assigned a noncompensable rating for left inguinal hernia scar. In January 2011, the Veteran filed claims for service connection for bilateral hearing loss, for a right knee disability, and for a higher rating for his status post left inguinal hernia surgery with scar. In the above noted June 2011 rating decision, inter alia, the RO granted service connection and assigned a noncompensable rating for bilateral hearing loss, denied service connection for a right knee disability, and also denied a compensable rating for status post left inguinal hernia surgery with scar. The Veteran appealed the RO's decision in these matters. The Board notes that the RO's decision in June 2011 was based in part on VA (QTC) examinations conducted in March 2011 and May 2011. In the report of March 2011 examination, the examiner commented that the Veteran's hernia scar was not painful. No abnormal findings were otherwise identified. The report of May 2011 audiological examination reflects a puretone threshold average for the right ear of 55 decibels (dB) and a puretone threshold average for the left ear of 67.5 dB. Speech discrimination scores were 86 percent in the right ear and 82 percent in the left ear. These findings would warrant a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100 (2013). Since the last adjudication of the Veteran's claims (see September 2012 Statement of the Case), the Veteran has submitted additional evidence. Of note, a statement from Mike Ward, a licensed audiologist, of Mike Ward's Hearing Center, notes that in January 2013 the Veteran's hearing was evaluated at the Center. Results of audiological testing reportedly revealed a puretone threshold average for the right ear of 67.5 dB and for the left ear of 57.5 dB. Mr. Ward noted that "recorded voice Maryland CNC modified performance intensity function speech discrimination score" was 48 percent in the right ear and 40 percent in the left ear. A January 2013 examination report by John W. Ellis, M.D. reflects that during service the Veteran suffered internal derangement and strain of the muscle tendon units of the knee secondary to severe stresses and from twisting injuries. Dr. Ellis concluded that these repetitive injuries in service had caused the Veteran to develop arthritis in the right knee. Additionally, Dr. Ellis commented that on examination the Veteran's hernia scar was painful, that the Veteran wore a hernia belt, and that the Veteran experienced a shooting pain into his left testicle when he lifted or turned wrong. Furthermore, Dr. Ellis identified that the Veteran's hernia surgery severed the ilioinguinal nerve resulting in numbness with pain. At his January 2013 hearing, the Veteran testified that experienced swelling and a pulse sensation at the hernia site. While Dr. Ellis refers to repetitive knee injury in service, there is no showing of such in the service medical folder. The knees were normal at service discharge. A May 1970 VA examination report noted "Orthopedic examination completely negative." The Veteran did not mention right knee problems when he filed claims for compensation benefits in 1970, 1982, or at any time prior to the current claim. It would seem likely that if he had right knee problems related to service and was aware of the compensation program, he would have filed a claim of service connection for right knee disability when filing earlier compensation claims or that right knee problems would have been noted by examining clinicians. The evidence submitted by the Veteran suggests a worsening of his service-connected disabilities since the last examinations in March and May 2011 and a relationship between the Veteran's right knee disability and his active service. Therefore, additional examination of the Veteran is necessary prior to the Board reaching a decision on his appeal. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all VA and private health care providers who have treated him for his right knee disability, for his bilateral hearing loss, and for his left inguinal hernia. The Veteran should specifically be asked to complete and provide medical releases (VA Form 21-4142) for any treatment he may have received for these disabilities. After securing any necessary releases, the RO should attempt to obtain these records. Notice to the Veteran of an inability to obtain any identified private records should be in accordance with 38 C.F.R. § 3.159(e) (2013). 2. After completion of the above (and allowing a reasonable amount of time to obtain any identified records), schedule the Veteran for VA examinations pertaining to his right knee disability as well as his bilateral hearing loss and his left inguinal hernia. The entire claims folder, to include a complete copy of this remand, should be made available to, and reviewed by, the designated examiners. Right Knee The examiner should elicit a detailed history from the Veteran concerning problems with his right knee. The examiner's claims file review should include, in particular, a review of the Veteran's service treatment records and the tabbed January 2013 medical report from Dr. John W. Ellis. Following examination of the Veteran and review of the claims file, the examiner should offer his/her opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater), that any diagnosed right knee disability had its clinical onset during service or is otherwise related to service. For purposes of the examination, any claim by the Veteran that right knee symptoms began in service and continued since that time, is not credible for reasons outlined in this document. The medical basis for any conclusion reached should be thoroughly explained. If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion and identify precisely what facts could not be determined. Hearing Loss Audiological testing of the Veteran should be undertaken and all relevant findings reported. The examiner should elicited information from the Veteran concerning the functional effects of his hearing loss disability. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Also, the examiner should review those tabbed audiological test results from Mike Ward Hearing Center dated in January 2013, from Hearing Aid Specialists dated in April 2012, and from HearingLife dated in January 2011. Inguinal Hernia The examiner should elicit a detailed history from the Veteran concerning any residuals associated his left inguinal hernia surgery. In particular, the examiner should review the report of March 2011 QTC medical examination and the January 2013 medical report from Dr. John W. Ellis (both documents are tabbed in the claims file). (Of note, Dr. Ellis identified the Veteran's hernia scar as being painful, that the Veteran wore a hernia belt, and that there was a shooting pain and damage to the ilioinguinal nerve resulting in numbness with pain.) The examiner should identify any residual disability associated with the Veteran's left inguinal surgery, to include any painful scar, nerve damage, etc. If nerve damage is identified the examiner should comment on the nerve(s) impaired, the affects attributable to the nerve impairment, the severity of the nerve impairment (e.g. mild, moderate, moderately severe, severe), and whether the nerve impairment equates to or results in complete paralysis. If additional examination or testing is necessary such should be undertaken. 3. After the above has been completed, undertake any additional evidentiary development deemed appropriate. Thereafter, re-adjudicate the issues on appeal, as are listed on the title page of this Remand. If any of the benefit sought is denied, the Veteran and his attorney must be provided a supplemental statement of the case (SSOC) and given an opportunity to respond before the case is returned to the Board for appellate review. No action is required of the veteran until he is notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). 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). These claims must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ THOMAS J. DANNAHER 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).