Citation Nr: 1623534	
Decision Date: 06/13/16    Archive Date: 06/29/16

DOCKET NO.  13-36 430	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Whether new and material evidence has been received to reopen a previously denied claim of service connection for degenerative joint disease (DJD) of the lumbar spine, and if so, whether service connection is warranted.  

2.  Entitlement to service connection for a left knee disability, claimed as secondary to the service-connected right knee disability.  

3.  Entitlement to service connection for a bilateral foot disability, to include metatarsalgia and pes planus.  

4.  Entitlement to service connection for a bilateral hearing loss disability.  

5.  Entitlement to service connection for tinnitus.  

6.  Entitlement to a disability rating in excess of 20 percent for the service-connected right knee disability, on the basis of limitation of flexion.  

7.  Entitlement to a disability rating in excess of 10 percent for the service-connected right knee disability on the basis of limitation of extension with arthritis.  

8.  Entitlement to a disability rating in excess of 30 percent for the service-connected gastroesophageal reflux disease (GERD).  

9.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant, S.R., and D.R.


ATTORNEY FOR THE BOARD

L. B. Cryan, Counsel


INTRODUCTION

The Veteran was a member of the Army National Guard of Alabama, and he served on active duty for training with the United States Army from August 1960 to February 1961, June 1963 to December 1963, and March 20-28, 1965.

This case is before the Board of Veterans' Appeals (Board) on appeal from October 2011 and November 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

The October 2011 rating decision denied service connection for bilateral metatarsalgia and a left knee condition.  

The November 2012 rating decision denied service connection for DJD of the lumbar spine, hearing loss and tinnitus; and, confirmed and continued previously assigned disability ratings for the service-connected GERD (rated at 30 percent) and the service-connected right knee disability (rated at 20 percent for limitation of flexion, and 10 percent for limitation of extension).

Although it is apparent that the RO reopened the claim of service connection for a low back disability, the Board must still review the RO's preliminary decision in that regard.  Barnett v. Brown, 8 Vet. App. 1, 4 (1995).

A TDIU claim is raised by the record because the Veteran asserts he is unemployable due to his service-connected disabilities and a TDIU claim may be part of a claim for an increased rating.  See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009).  

Regarding the claim of service connection for a left knee disability, the RO initially denied that claim in an October 2011 rating decision and the Veteran did not thereafter submit a Notice of Disagreement with that denial; however, the Veteran requested to reopen his claim of service connection for a left knee disability in January 2012, and he submitted new and material evidence to support his claim by a way of a January 2012 statement in which he reports that he injured his left knee in the same accident that injured his right knee, and he sought treatment for his left knee in service but it wasn't recorded.  Presuming its credibility, this evidence, which was submitted within one year of the October 2011 rating decision, is new and material.  If new and material evidence is received before an appeal period has expired, a rating decision does not become final, and any "subsequent decision based on such evidence relate[s] back to the original claim."  Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); see 38 C.F.R. § 3.156(b).  VA is required to provide a "directly responsive" determination as to whether subsequently submitted materials constitute new and material evidence relating to an earlier claim, regardless of how VA characterizes that later submission of evidence.  Mitchell v. McDonald, 27 Vet. App. 431, 437 (2015); Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed. Cir. 2014).  If VA does not make the necessary determination, the underlying claim remains pending. Mitchell, 27 Vet. App. at 437-38.  In light of the foregoing, the Veteran's claim of service connection for a left knee disability has been pending since the Veteran's filed his claim in May 2011 and new and material evidence is not required to reopen this claim.  

In April 2016, the Veteran, his wife, and his son, testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ) sitting in Washington, DC.  A transcript of this testimony is associated with the electronic claims file.  

This appeal was processed using the Virtual Benefits Management System (VBMS) paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The reopened claim of service connection for DDD of the lumbar spine, as well as the issues of service connection for a left knee disability and a bilateral foot disability; and, the issues of entitlement to a TDIU and disability ratings in excess of 20 percent for the service-connected right knee limitation of flexion, in excess of 10 percent for the service-connected right knee limitation of extension, and in excess of 30 percent for GERD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In an unappealed October 2002 rating decision, the RO denied entitlement to service connection for DJD of the lumbar spine L2-L5 based on a finding that service treatment records (STRs) were silent for complaints or findings of a low back disability and there was no evidence linking any current back disability to service.  

2.  In an unappealed January 2007 rating decision, the RO denied entitlement to service connection for DJD of the lumbar spine L2-L5 because new and material evidence had not been received to reopen the previously denied claim.  

3.  Presuming its credibility, the evidence associated with the record since January 2007 relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of service connection for DJD of the lumbar spine.  

4.  The Veteran's hearing loss and tinnitus are, as likely as not, related to in-service acoustic trauma.  



CONCLUSIONS OF LAW

1.  The October 2002 and January 2007 rating decisions denying service connection for DDD of the lumbar spine are final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2015).

2.  New and material evidence has been received sufficient to reopen the claim of service connection for DDD of the lumbar spine L2-L5.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).

3.  Resolving all doubt in the Veteran's favor, hearing loss was incurred in service.  38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2015).

4.  Resolving all doubt in the Veteran's favor, tinnitus was incurred in service.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

At the outset, VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  

The claims of service connection for hearing loss and tinnitus are granted in full pursuant to this decision, and the Veteran's previously denied claim of service connection for DDD of the lumbar spine is being reopened pursuant to this decision; therefore, any potential defect regarding VA's notice and assistance with respect to these claims is harmless error.  

The Veteran's service treatment records are associated with the record and pertinent private and VA medical records have been secured.  

It was also noted at the hearing that additional VA records were recently uploaded to the Veteran's electronic claims file, and the hearing transcript notes the Veteran's waiver of review of that evidence by the Agency of Original Jurisdiction (AOJ) in the first instance.  As such, the Board may proceed without prejudice.  
The appellant has not identified any pertinent evidence that remains outstanding with respect to this claim.  VA's duty to assist is met.

II.  New and Material Evidence

In an unappealed October 2002 rating decision, the RO denied entitlement to service connection for DJD of the lumbar spine L2-L5 based on a finding that service treatment records (STRs) were silent for complaints or findings of a low back disability and there was no evidence linking any current back disability to service.  

In an unappealed January 2007 rating decision, the RO denied entitlement to service connection for DJD of the lumbar spine L2-L5 because new and material evidence had not been received to reopen the previously denied claim.  

A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier.  The October 2002 and January 2007 rating decisions are final because the Veteran did not file a timely appeal with respect to either of those decisions.  38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015).

In addition, no evidence that was relevant to the issue was filed with VA during either appeal period, thus, new and material evidence was not submitted so as to vitiate the finality of those decisions.  38 C.F.R. § 3.156(b) (2015).

Prior unappealed decisions are final.  However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a).  When "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim.  Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  

The provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence, and view the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).

Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record.  Evans v. Brown, 9 Vet. App. 273 (1996). 

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  However, VA is not bound to consider credible the patently incredible.  Duran v. Brown, 7 Vet. App. 216 (1994).

As noted above, the last final rating decision with regard to the issue of service connection for DDD of the lumbar spine was issued in January 2007.  The relevant evidence of record at the time of the January 2007 rating decision included STRs; an August 2006 memo from a private doctor opining that the Veteran's back x-ray findings indicate a back injury; a lay statement from the Veteran's spouse noting that she recalls the Veteran's continuous reports of back pain since they first met in 1963; and, a September 2006 memorandum from the Veteran's private chiropractor noting treatment for back pain and a diagnosis of DJD of the lumbar spine indicated on plain films

Since January 2007 rating decision, additional evidence has been associated with the claims file, including additional records from the Veteran's chiropractor showing continued treatment for back pain; a June 2012 VA examination report which included examination of the lumbar spine; and, the Veteran's April 2016 hearing transcript which suggests that the Veteran may have injured his low back at the same time that he injured his right knee; and, although he reported this at the time of the right knee injury, the medical staff did not consider these reports important compared to the required treatment for the right knee.  The Veteran also testified that his back condition may be getting worse (aggravated) as a result of his service-connected right knee disability.  

Presuming the credibility of this evidence, it is new and material because it suggests that the Veteran's lumbar spine disability may be aggravated by the Veteran's service-connected right knee disability and/or that the Veteran's lumbar spine disability had its onset during service.  The evidence was not previously of record and raises a reasonable possibility of substantiating the claim of service connection for DDD of the lumbar spine.  As the new evidence addresses the reason for the prior denial, it is material and the claim may be reopened.  

The reopened claim is addressed in the REMAND which follows.

III.  Service Connection

The Veteran seeks service connection for hearing loss and tinnitus.  At his April 2016 video hearing, the Veteran testified that he first noticed hearing loss and tinnitus during his period of service from August 1960 to February 1961.  During that time period, the Veteran served as a communications wiring specialist.  The Veteran testified that at one point when big charges were being set, one of them blew up and exploded right next to him.  It was at this point that the Veteran first noticed the hearing loss and tinnitus.  The Veteran also testified that as a result of this explosion, his ear bled and he also got a piece of shrapnel in his right leg.  (An October 2012 VA examination confirms that there is objective radiographic evidence of retained metallic shrapnel in the medial aspect of the distal thigh, anteriorly.)

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C.A. 
§§ 1110, 1131; 38 C.F.R. § 3.303.  

Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability.  See38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed .Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303 (2015).

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a) (West 2014); 38 C.F.R. § 3.303(a) (2015); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service.  Hensley v. Brown, 5 Vet. App. 155 (1993).

The Veteran's service treatment records are negative for reports of, or treatment for, hearing loss or tinnitus, or bleeding from the ear, and a VA examiner in November 2012 found the Veteran's current bilateral sensorineural hearing loss was unrelated to service based on a finding that none of the Veteran's four in-service audiometric examinations (January 1960, January 1961, July 1963 and November 1963) noted a hearing loss.  

However, a review of the STRs shows that the January 1961 separation examination documents hearing loss for the first time, and this is consistent with the Veteran's credible reports of hearing loss and ringing in his ears first noticed at that time.  

Specifically, the audiometric findings in January 1961 revealed pure tone thresholds in decibels as follows:  




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
15
n/t
30 or 40
LEFT
40
40
30
n/t
35

This STR is not perfectly legible, but the Board has attempted to discern the handwritten findings as accurately as possible, and with resolution of any doubt in favor of the Veteran.  

In addition, the Veteran's physical profile, summarized on the January 1961 examination report with the acronym "PUHLES" notes a "2" in the category representative of hearing/ears, which is reflective of some degree of impairment.  A "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service).  The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition."  Odiorne v. Principi, 3 Vet. App. 456, 457 (1992).  

Because some impairment of the Veteran's hearing/ears was first noted on the January 1961 audiogram, (although the exact degree is not clear because the numbers are not completely legible), and an examiner, for the first time, acknowledged some level of impairment in the "H" category of the Veteran's physical profile that corresponds to hearing/ears, the Board finds that a hearing loss disability was first noted in service.  

Findings on a subsequent in-service examination in July 1963 appear to show an improvement in the Veteran's hearing when compared to the January 1961 examination as evidence by the notation of "1" corresponding to the "H" category on the PUHLES physical profile; and by the following findings from the audiogram:

 



HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
n/t
15
LEFT
15
15
15
n/t
10

However, given the timeframe of this audiogram, the findings require an upward adjustment to accurately reflect the level of hearing loss when compared with the current reporting method.  Significantly, it does not appear that the VA examiner in November 2012 accounted for the fact that audiometric findings on these exams were likely reported in ASA units rather than the current reporting method of ISO units.  Importantly, for audiometric testing by VA on June 30, 1966 or earlier, or by a service department October 31, 1967 or earlier, it will be assumed that the report is in ASA (American Standards Association) units.  For reports after that date, it will be assumed that the audiometric testing is done in ISO (ANSI) (International Standards Organization) units.  Since the current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units, military audiograms from before November 1967 must be converted from ASA to ISO units.  The ASA units are converted to ISO by adding 15 dB to the finding at 500 Hz, 10 dB to the findings at 1000 Hz, 2000 Hz, and 3000 Hz; and, by adding 5 dB to the finding at 4000 Hz.

When the audiometric findings from July 1963 are adjusted to comply with the ISO standards, the pure tone thresholds are converted as follows for the right ear:   25 at 500Hz, 20 at 1000 Hz and 2000  Hz, and 20 at 4000 Hz.  On the left, the pure tone thresholds are converted as follows:  30 at 500 Hz, 25 at 1000 Hz and 2000 Hz, and 15 at 4000 Hz.  Thus, while these the findings on the July 1963 examination report do not show a hearing loss disability for VA purposes pursuant to 38 C.F.R. § 3.385, they do show some degree of hearing loss.  The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Moreover, while no hearing loss was noted on the last separation examination in November 1963, these findings were based on a whispered voice test which is not an accurate measure of hearing loss, and no audiogram was performed at that time.  

Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Insofar as the appellant presents an argument of continuity of symptomatology, the U.S. Court of Appeals for the Federal Circuit recently held in Walker v. Shinseki that service connection can be based on continuity of symptomatology only with respect to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir. 2013).  An organic disease of the nervous system, such as sensorineural hearing loss, is one such disease.  

In this case, the Veteran has credibly reported that he has noticed a hearing loss since the blast in service which made his ear bleed.  His wife has credibly testified that she, too, noticed that the Veteran was hard of hearing when she met him in 1963.  The statements of the Veteran and his wife are consistent with the findings in the STRs which show the onset of hearing loss during a period of active duty for training between August 1960 and January 1961.  

Significantly, service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Moreover, the Court has held that the etiology of a Veteran's hearing loss cannot be based solely on a Veteran's "normal" hearing loss at entrance to and separation from service.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  

It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.

In this case, a hearing loss was first shown in service, and is consistent with the timing of the blast in service.  Although the VA examiner found against a relationship between the current hearing loss and service, this opinion lacks probative value because as noted above, it was based on an inaccurate in-service medical history which, at the very least, does not account for the January 1961 notation of some impairment in hearing/ears noted on the PUHLES profile.  

Moreover, even if the Board's interpretation of the January 1961 (somewhat illegible) audiogram is not accurate, the Veteran's PUHLES profile supports a finding of hearing loss in service.  Furthermore, the 1963 findings show that some hearing loss was present at that time, and the Veteran and his spouse have provided competent and credible evidence of continuity of hearing loss symptoms since service.  See 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir. 2013).  

The Board finds more probative the January 1961 examination findings and the Veteran's statements regarding the onset of his hearing loss, as well as the credible reports of continuity of symptoms since service.  Even if the STRs show some improvement in hearing between 1961 and 1963, these records also show that some level of hearing loss was noted when the findings are converted to ISO units.  

Based on the foregoing, the Board finds that the Veteran's hearing loss as likely as not had its onset during service, and the Veteran's current hearing loss disability cannot be satisfactorily disassociated from this service.  Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that the Veteran's bilateral hearing loss is linked to service.  The Veteran is therefore entitled to the benefit of the doubt.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Accordingly, service connection is warranted for bilateral hearing loss.  

In addition, the Veteran credibly reported at his April 2016 hearing that his tinnitus began when his hearing loss began.  Although the Veteran's tinnitus is not specifically documented in the STRs, there is no reason to doubt the Veteran's credibility in this regard.  Moreover, there is no contradictory evidence which would suggest that the Veteran's tinnitus is not related to his hearing loss.  

The November 2012 VA examination report indicates that the Veteran reported the onset of tinnitus 8-9 years prior; however, the Veteran clarified at his video hearing that he first noticed the ringing in his ears after the in-service explosion which was the same time that he first noticed a hearing loss.  Again, there is no reason to doubt the Veteran's credibility in this regard.  

Based on these findings, the Board is unable to disassociate the tinnitus from the hearing loss.  Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that the Veteran's tinnitus is linked to service.  The Veteran is therefore entitled to the benefit of the doubt.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Accordingly, service connection for tinnitus is warranted.  


ORDER

The application to reopen the previously denied claim of service connection for DDD of the lumbar spine is granted, to that extent only, and the claim is reopened.  

Service connection for bilateral hearing loss is granted.  

Service connection for tinnitus is granted.  


REMAND

The Veteran seeks service connection for DDD of the lumbar spine, a bilateral foot disability, and a left knee disability, claimed as secondary to the service-connected right knee disability.  The Veteran also seeks an increased rating for the service-connected right knee disability, currently rated as 20 percent disabling on the basis of limitation of flexion, with an additional 10 percent rating assigned on the basis of limitation of extension.  Additional development is necessary with regard to these claims.  

Regarding the right knee, the most recent examination of the right knee took place in September 2012 and the Veteran reported at his April 2016 hearing that his symptoms have worsened and include instability of the knee.  The Veteran also testified that he wore stockings for his knees, but the record also shows that he has peripheral vascular disease and it is not clear why the stockings were prescribed or to what extent, if any, the peripheral vascular disease has on the right knee disability.

Moreover, the findings from the 2012 VA examination appear inconsistent.  For example, the examiner notes that the Veteran can flex the knee to 80 degrees, but this is further limited by pain to only 5 degrees.  Likewise, the examiner indicates that the Veteran cannot fully extend the right knee and that extension ended at 5 degrees, with painful motion beginning at 45 degrees of extension.  However, then the examiner notes that after repetitive use testing, there was no limitation of extension; yet, the examiner also indicated that there was additional limitation in range of motion of the knee following repetitive use.  As such, the Veteran's limitation of motion of the right knee may not have been accurately reported on the 2012 VA examination.  

In light of the foregoing, a new examination is necessary to decide the claim.  

Regarding the claim of service connection for DDD of the lumbar spine, the Veteran asserts that he injured his back at the same time he injured his right knee during service.  He testified at his April 2016 hearing that he also thinks his back pain is aggravated by his service-connected right knee disability, and the Veteran's spouse testified that as long as she's known him, the Veteran has complained of back pain and they were married when he was 27-years old.  The VA examiner in September 2012 opined that the Veteran's back disability was note related to his right knee disability, based on a finding that spondylosis of the lumbar spine has no relationship to degenerative joint disease of an extremity.  The examiner did not opine as to the issue of aggravation.  Finally, in August 2006, a private doctor, W.S.L., MD opined that the Veteran's back x-ray findings, "indicate an injury to his back."  However, Dr. L did not specifically link the Veteran's back disability to service.  Thus, a new examination is necessary to determine whether the Veteran's DDD of the lumbar spine is a residual of the in-service injury and/or whether the Veteran's DDD of the lumbar spine, as likely as not, had its onset during service or is otherwise related to service; and, whether it is, as likely as not, aggravated by the service-connected right knee disability.  A medical opinion is therefore necessary to decide this claim.  

Regarding the Veteran's feet, asymptomatic pes planus was noted on a January 1961 Report of Medical Examination.  According to a September 2011 VA examination, the Veteran had a diagnosis of bilateral metatarsalgia, but degenerative joint disease in multiple joints of the left foot was also shown, and the Veteran maintains that he injured his feet in boot camp and has had pain ever since.  

A VA examiner in May 2014 opined that the Veteran's bilateral metatarsalgia was less likely than not related to service.  The examiner reasoned that the Veteran had no complaints of foot pain at the time of service discharge or for years afterward and the metatarsalgia was not diagnosed until 2005.  In essence, the examiner based the opinion on the absence of treatment and did not consider the Veteran's statements regarding an in-service foot injury or the documented pes planus in service.  Furthermore, the examiner also noted that metatarsalgia may be caused by, inter alia, certain foot shapes and/or foot deformities, yet the examiner does not explain why the Veteran's in-service foot deformity (i.e. flat feet) is unrelated to the metatarsalgia.  Moreover, the examiner did not opine as to the significance of the left foot arthritis when considered along with the Veteran's statements as to causation.  Thus, another examination is required.  

Finally, the Veteran asserts that his left knee disability resulted from the service-connected right knee disability.  A VA examiner in September 2012 opined that the left knee degenerative joint disease (DJD) was less likely than not proximately due to or the result of the Veteran's service-connected right knee disability based on, at least in part, a finding that there was no indication of a left knee injury in service, despite the Veteran's reported history, and a finding that the DJD of the right knee was most likely due to aging.  The examiner found that there was no gait impairment which would indicate overuse of the left knee.  However, at the Veteran's April 2016 hearing, he testified that he favors his left knee because the right knee hurts.  He also reportedly used a cane and stockings to help him walk and recently had a hip replacement.  

The Veteran also testified that the service-connected GERD had worsened.  

In light of the Veteran's hearing testimony, another VA examination is required.  

Finally, the TDIU issue is inextricably intertwined with the above described service connection issues and the claim for increase.  Thus, the Veteran's TDIU claim must be deferred pending the outcome of his other claims.  See Holland v. Brown, 6 Vet. App. 443 (1994).  

Since these claims are being remanded, the RO should update the electronic record to include any recent VA treatment records that are not of record.  See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Obtain and associate with the record all outstanding VA medical records pertinent to the claims on appeal generated since April 1, 2016.  

2.  With appropriate authorization, obtain and associate with the record all outstanding private treatment records identified by the Veteran as pertinent to his claims on appeal.  

3.  Send the Veteran a TDIU claim form and request that he return the completed form which should include his level of education and work history.  

4.  After obtaining any outstanding records, schedule the Veteran for an orthopedic examination to assess the current nature, extent, and severity of the service-connected right knee disorder; and, opine as to whether the Veteran's DDD of the lumbar spine, bilateral foot disability, and/or left knee DJD are, as likely as not, the result of an in-service injury or other in-service event; or, whether they are aggravated by the service-connected right knee DJD.  

The electronic claims file via VBMS and Virtual VA must be made available to the examiner for review.  The examiner is requested to obtain a complete history from the Veteran regarding his knee pain, foot pain, back pain, and DJD.  

(A)  Regarding the right knee, the examiner should record pertinent medical complaints, symptoms, and clinical findings, including specifically active and passive range of motion in degrees, including the specific limitation of motion due to pain, including at what point the pain begins.

The examiner should then set forth the extent of any functional loss present for the service-connected right knee DJD due to weakened movement, excess fatigability, incoordination, or pain on use.  The examiner should also describe the level of pain experienced by the Veteran and state whether any pain claimed by him is supported by adequate pathology and is evidenced by his visible behavior.  The degree of functional impairment or interference with daily activities, if any, should be described in adequate detail.  Any additional impairment or additional limitation of motion on use, due to pain, or in connection with any flare-up, or repetitive use, should be described in terms of the degree of additional range-of-motion loss.  

The examiner should also indicate whether the Veteran's right knee is productive of lateral instability and/or subluxation in light of the Veteran's reports that his knee often locks and gives way; and, if found, whether such lateral instability and/or subluxation is slight, moderate or severe.  

The conclusions should reflect review of the VBMS electronic claims folder, and the discussion of pertinent evidence, including, but not limited to, the Veteran's statements regarding the level of pain, including during flare-ups.  

(B).  After examination of the Veteran's left knee, lumbar spine and bilateral feet, the examiner should opine as to the following:

Is it as likely as not (a 50 percent or higher probability) that the Veteran's DJD of the left knee and/or DDD of the lumbar spine, and/or bilateral foot disability (including, but limited to bilateral metatarsalgia, pes planus and the left foot DJD) had their onset during service or are otherwise related to an injury or other event in service?  The examiner should consider whether any relationship exists between the pes planus noted in service, the in-service right knee injury, and the development of metatarsalgia, back pain, and left knee arthritis.  The examiner should also consider the Veteran's competent lay statements as to the onset of his foot, back, and left knee pain.  

If the examiner opines that the bilateral foot disability, DDD of the lumbar spine and/or left knee disability are unrelated to an injury or other event in service, then the examiner should opine as to whether any foot disability, DDD of the lumbar spine and/or left knee DJD is/are caused by or aggravated by the service-connected right knee disability; i.e. is the DJD of the knees, and/or DDD of the lumbar spine and/or bilateral foot disability chronically worsened as a result of the service-connected right knee DJD?  In determining whether there is aggravation, the examiner should consider the Veteran's statements regarding onset and severity of the knee, foot and back pain.  Even if the examiner is unable to determine a baseline severity prior to the aggravation, the examiner is directed to the language of 38 C.F.R. § 3.310(b) which indicates that the baseline can be measured by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  

The examiner is also 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.  All opinions should be supported by a an adequate rationale.  Further, the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding.  The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between service and the claimed conditions.  

5.  Arrange for the Veteran to undergo VA examination to determine the severity of GERD.  The claims folders must be reviewed.  Any tests and studies deemed necessary by the examiner should be conducted.  All findings should be reported in detail.

6.  After the above development is completed, readjudicate the claim of service connection for DJD of left knee, DDD of the lumbar spine, and a bilateral foot disability, as well as the claims for an increased rating for the service-connected right knee DJD, GERD, and the TDIU claim.  If the benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case and be provided an appropriate opportunity to respond, before the case is returned to the Board.

The appellant 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 2014).


______________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs