Citation Nr: 1618273 Decision Date: 05/06/16 Archive Date: 05/13/16 DOCKET NO. 13-29 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an initial rating in excess of 10 percent for right knee strain. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran, Veteran's Wife ATTORNEY FOR THE BOARD B. T. Callahan, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1983 to September 1983 and from June 1984 to July 1985. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied service connection of bilateral hearing loss. This case also arises from an April 2014 rating decision which granted service connection of the Veteran's right knee sprain and assigned the Veteran a 10 percent disability rating under diagnostic code 5260. In May 2015, the Veteran testified on these issues before the undersigned Veterans Law Judge during a hearing conducted at the Buffalo regional office. A transcript of the hearing has been associated with the claims file. This appeal has been processed utilizing the paperless, electronic Veterans Benefits Management System and Virtual VA claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In this case, the Board notes first that the Veteran's hearing was examined in August 2011. However, the Veteran testified during the hearing that there was some confusion during this examination as to how precisely he was to complete the audiological portion of the examination. This account appears consistent with the examiner's report, which stated that the examination was "invalid" because the Veteran was inconsistent in his responses, which created inconsistencies in the data. Because of these inconsistencies, the examiner did not report the audiological findings of the examination. Yet, there is credible evidence in the record to suggest that the Veteran may have a disability of hearing loss, though there is insufficient evidence upon which to decide the case. Therefore, the Board finds that a valid and fully detailed audiological examination of the Veteran's hearing should be attempted. With respect to the Veteran's claim for an increased initial rating of his right knee sprain, the Board notes the Veteran's testimony during the May 2015 hearing, in which the Veteran was clear that he believed his condition had worsened since his last examination. The Veteran's right knee was last examined in April 2014, and both the Veteran and his wife testified that he was now greatly limited by his right knee. Specifically, both the Veteran and his wife testified that the Veteran can no longer perform any house or yard work, and the Veteran stated that he often spends the entire day lying down because of his pain. The Veteran also testified that his extremity strength in the right leg was diminished by his pain, as he now has difficulty pressing pedals or climbing/descending stairs. Accordingly, the record does appear to contain an indication that a new examination is warranted. Finally, the Board also notes that during the Veteran's testimony, he indicated that he receives private treatment, including pain management, for his right knee. However, the claims file does not contain any private treatment records, or any evidence that the VA has attempted to obtain any such records. Given the foregoing, although the Board regrets the additional delay, a remand in this case is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim, so that he is afforded every possible consideration. 38 U.S.C.A. §5103A (West 2014); 38 C.F.R. §3.159 (2015). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA out-patient treatment records that are not currently in evidence. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and authorization to obtain any private treatment records that may assist in development of this claim. If any such records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist, or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and he must be allowed the opportunity to provide such records. 3. Schedule the Veteran for an audiological examination of his hearing with an appropriately qualified medical professional. In scheduling this examination, the examiner should be provided access to the entire claims file. In conducting this examination, the examiner should perform all indicated tests, including a complete audiological examination. The examiner should also fully describe any functional effects caused by the Veteran's hearing disability, if any. The examiner also should offer their opinion as to whether it is at least as likely as not that the Veteran's hearing loss, if any, is causally or etiologically related to his service, based on the examiner's observations and review of the claims file. In forming this opinion, the examiner is reminded that the Veteran is considered competent to report events he personally experienced, including any work with artillery. The examiner should support any and all conclusions and opinions with clear rationale, including specific references to the evidence upon which the examiner relied in forming these conclusions and opinions. 4. After the Veteran's outstanding medical records have been obtained, schedule the Veteran for an examination of his right knee with a properly qualified medical professional. The examiner should be provided access to the Veteran's claims file. In conducting this examination, the examiner should conduct all indicated tests and examinations. Thereafter, the examiner should describe the Veteran's right knee ranges of motion, as well as any instability or subluxation in the right knee. The examiner also should describe the Veteran's symptoms, including any flare-ups that the Veteran may experience, as well as the functional limitations placed on the Veteran by those symptoms. If the examiner is not able to provide such information for any reason, the examiner should explain this inability. The examiner should support any and all conclusions and opinions with clear rationale, including specific references to the evidence upon which the examiner relied in forming these conclusions and opinions. 3. After completing the above development, as well as any other development deemed warranted, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the Veteran's claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and an appropriate period of time allowed for response. 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 remanded by the Board of Veterans' Appeals or by the CAVC for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL E. KILCOYNE 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).