Citation Nr: 1641882 Decision Date: 10/31/16 Archive Date: 11/08/16 DOCKET NO. 12-32 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to a rating in excess of 10 percent disabling for right knee degenerative joint disease (DJD). 3. Entitlement to a rating in excess of 10 percent disabling for left knee degenerative joint disease (DJD). 4. Entitlement to an initial rating in excess of 10 percent disabling for left knee instability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from May 1974 to May 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating by a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for tinnitus; granted service connection for a left knee instability with an initial 10 percent rating and confirmed and continued 10 percent ratings per knee for DJD of the left and right knees. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that remand is warranted for all the appellate issues. The most recent medical records are noted to be dated from August 2013 more than three years ago, with the most recent VA examination addressing the severity of the bilateral knee disorders also dated in August 2013. After these records were obtained the Veteran sent a written statement confirming that he continued to receive treatment at the VA Medical Center (VAMC) in Pensacola, Florida. He has not submitted any subsequent statements that would indicate that he has since stopped receiving treatment at the VAMC for his claimed knee issues. These more recent VA treatment records are constructively of record and must be associated with the claims file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In this regard it is further noted that the Veteran underwent right knee surgery in May 2012 and was in receipt of a temporary total disability rating from May 17, 2012 to July 1, 2012 for the right knee DJD, with the 10 percent rating resumed as of July 1, 2012. Although records from the time of this surgery and shortly thereafter are associated with the claims file, again there are no records showing his current level of disability. In its September 2016 brief, the Veteran's representative has pointed to the VA's duty to "make reasonable efforts to obtain relevant records," whether the records are possessed by an agency of the federal government or by a private individual or entity, as long as the claimant "adequately identifies" the records and authorizes the VA to obtain them. See 38 U.S.C.S. § 5103A (b) (2); and 38 C.F.R. §§ 3.159(c) (1) and (2). Given the Veteran's continued assertion that these service-connected disabilities are more severely disabling than reflected in the currently assigned ratings, and in light of the amount of time since his last examination for these disabilities and the possible increase in their severity since, reexamination is needed to fully and fairly evaluate the knee conditions on appeal. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability. . . the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."); 38 C.F.R. § 3.327(a). In regards to the tinnitus, the Board notes that inservice noise exposure to hazardous noise has been established by the record as consistent with his duties as a Material Facilities Specialist. 38 U.S.C.A. § 1154(a). The Board also finds that the evidence presently before it is not sufficient to warrant a grant of service connection. The Veteran's lay history is noted to be inconsistent with regards to when his tinnitus began. His November 2012 VA form I-9 is noted to suggest that he was discharged from service with ringing in his ears, which is not shown in the service treatment records. However the September 2010 VA examination is noted to have reported a history of the Veteran not being sure as to when his tinnitus began, although it was said to have been of gradual onset years earlier. Because there may be additional evidence that could prove pertinent to the Veteran's tinnitus claim in the post August 2013 VA records in the VA's constructive possession, the Board defers further consideration of this matter pending the obtaining of these additional records. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file all current VA treatment records from the VAMC in Pensacola, Florida created from August 2013 to the present. 2. Schedule the Veteran for appropriate VA examination(s) to assess the nature and current severity of his service-connected a) right knee DJD b) left knee DJD and c) left knee instability. The entire claims file and a copy of this REMAND must be made available to the examiner(s). The examiner(s) should note in the examination report(s) that the evidence in the claims file has been reviewed to become familiar with its medical history. The examination(s) should include any diagnostic testing or evaluation deemed necessary by the examiner(s). The examiner(s) should report in detail all relevant clinical findings, all diagnoses, and all current complaints. The appropriate Disability Benefits Questionnaires (DBQs) should be filled out for this purpose, if possible and should comply with the recent Court decision of Correia v. McDonald, 28 Vet. App. 158 (2016) (The DBQ must address the necessary active motion, passive motion, weight-bearing, and nonweight-bearing information as appropriate). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 3. If any benefit sought remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. 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). _________________________________________________ P. SORISIO 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).