Citation Nr: 1602532 Decision Date: 01/21/16 Archive Date: 01/28/16 DOCKET NO. 09-02 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, that in pertinent part denied service connection for a bilateral knee disorder. These matters are also before the Board on appeal from a March 2012 rating decision that denied service connection for bilateral hearing loss. That is, during the period under appellate review, the RO issued a statement of the case (SOC) in November 2014 as to this issue. The Veteran perfected an appeal that same month and requested a hearing before the Board by videoconference from the RO. The Veteran appeared and testified at a videoconference hearing, in relevant part as to the issue of service connection for a bilateral knee disorder, in September 2010 before a Veterans Law Judge who is no longer employed at the Board. A transcript of the hearing is associated with the record. The Veteran was informed of his right to have another hearing but declined that opportunity in March 2012. When this case was most recently before the Board in September 2014, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. The Board notes that the issue of entitlement to service connection for foot fungus was initially on appeal and remanded by the Board. In a December 2014 decision, service connection for tinea unguium was granted. The Veteran has not filed a notice of disagreement (NOD) with regard to any appealable determination made in the December 2014 rating decision, including the schedular rating or effective date assigned. Therefore, these matters are not currently before the Board. See 38 C.F.R. §§ 20.200, 20.201, 20.302 (2015); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (explaining that where a claim is granted during the pendency of an appeal, a second NOD must thereafter be timely filed to initiate appellate review concerning the compensation level or the effective date assigned for the disability). The Board also notes that in a March 2015 decision, the RO denied reopening the claim for service connection for PTSD. In a June 2015 decision, the RO reopened and denied the claim. The Veteran filed a notice of disagreement (NOD) with the denial in August 2015. Typically, when there has been an initial RO adjudication of a claim and a NOD has been filed as to its denial, the appellant is entitled to a Statement of the Case (SOC), and the RO's failure to issue a statement of the case is a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238 (1999). However, in this case, in response to the Veteran's NOD, the RO issued a September and December 2015 letters acknowledging the NOD and explaining the different appeal options. Thus, as the RO has acknowledged receipt of the NOD, this situation is distinguishable from Manlincon v. West, supra, where a NOD had not been recognized. As the RO is properly addressing the NOD, no action is warranted by the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Bilateral Knee Disorder The Veteran contends that he injured his knees during a rappelling exercise in Germany when he struck the rock wall he was rappelling down, causing both knees to swell and cutting his left knee. He further noted that following the injury his knees would swell whenever he overused them, especially following kneeling or squatting. The Board notes that the Veteran is competent to speak to observable symptoms such as pain and swelling, and these symptoms are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board remanded this issue in September 2014 for an addendum opinion that was received in October 2014 in which a different VA examiner opined that it was less likely as not that any bilateral knee disorder was caused or aggravated by military service, to include as a result of the chondromalacia diagnosed in 1977. The examiner stated that the 2008 and 2009 MRI of right and left knee did not show pathology consistent with 1977 onset; no chronic bilateral knee condition was documented during military service or proximate to military service. The Board finds that this addendum opinion is inadequate for adjudication purposes. Namely, the VA examiner appeared to base the opinion in part on the absence of treatment; of importance are the symptoms, not treatment, in determining the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). While there are no treatment records, there are credible, reliable statements from the Veteran as to his symptoms, which must be taken into consideration. The question becomes whether the types of symptoms he had are related to the current disability. Moreover, as essentially argued by the Veteran's representative in a December 2015 brief, the October 2014 opinion was conclusory. As such, another addendum opinion should be sought on remand. Bilateral Hearing Loss As noted in the Introduction, the Veteran has perfected an appeal in regard to an RO rating decision in March 2012 that denied service connection for bilateral hearing loss. The Veteran has requested a videoconference hearing before the Board for this issue. Because such hearings are scheduled by the RO, remand is required. Accordingly, the case is REMANDED for the following action: 1. Provide access to the electronic claims file to the VA examiner who wrote the October 2014 addendum opinion. The examiner should be requested to review the claims file and provide an addendum to respond to the following: (a) Whether it is at least as likely as not that any bilateral knee disorder was caused or aggravated by military service, to include as a result of the chondromalacia diagnosed in 1977. (b) Explain how the 2008 and 2009 MRIs revealed pathology "inconsistent with" the Veteran's 1977 knee injury. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions regarding the in-service incident as discussed fully above in the remand must be considered and weighed in making the determination as to whether a nexus exists between service and the currently diagnosed bilateral knee disorders. If the examiner determines that an opinion cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed disorder, or whether the actual cause is due to multiple potential causes. In other words, simply stating that an opinion cannot be made without resort to mere speculation is not acceptable without a detailed explanation as to why this is so. See Jones v. Shinseki, 23 Vet. App. 382 (2010). If the October 2014 examiner is unavailable, the electronic claims folder should be reviewed by another examiner with appropriate expertise who should be requested to provide the required opinion with supporting rationale. Additional examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. 2. Thereafter, readjudicate the issue on appeal for service connection for a bilateral knee disorder. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last SSOC. The Veteran and his representative should be afforded the applicable time period in which to respond. 3. Schedule the Veteran for a Board videoconference hearing in connection with his claim for service connection for bilateral hearing loss, in accordance with his request. A copy of the letter notifying the Veteran of the time and place to report should be placed in the electronic claims file. The appellant 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 2014). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).