Citation Nr: 1751924 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 14-03 435 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a left knee disability, to include degenerative joint disease. 2. Entitlement to a compensable initial rating for bilateral hearing loss. 3. Entitlement to a compensable initial rating for dermatitis. REPRESENTATION Veteran represented by: William D. Feehan, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from July 1977 to September 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal of February 2013 (dermatitis) and May 2013 (hearing loss) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In May 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge at the Philadelphia, Pennsylvania RO. A transcript of the hearing is associated with the claims file. The Board notes that the Veteran submitted additional evidence, namely private treatment records, in July 2017, after the issuance of the December 2013 statement of the case. The Veteran has not waived initial agency of original jurisdiction (AOJ) consideration of this evidence. Nevertheless, section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, which amends 38 U.S.C.A § 7105 by adding new paragraph (e), provides that if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. In the instant case, the Veteran's substantive appeal was received in January 2014 and AOJ consideration of this evidence has not been explicitly requested. In turn, a waiver of this additional evidence is not necessary and the Board may properly consider all additional evidence submitted. The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disabilities at issue render him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND After review of the record, the Board concludes that remand is necessary for additional development. Service Connection for Left Knee Disability Regarding the Veteran's claim for entitlement to service connection for a left knee disability, to include degenerative joint disease, remand is required to provide the Veteran with a VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C.A. § 5103 (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). The Veteran has not yet been provided with an examination. Here, a June 2012 VA treatment record contains an assessment of degenerative changes in the left knee. Additionally, the Veteran's service treatment records reflect that the Veteran was treated for a left knee injury in July 1978. The Veteran's August 1978 separation examination notes that the Veteran injured his left knee and it still bothers him and "buckles." Furthermore, the Veteran has competently and credibly stated that he has had a left knee disability since service. Thus, there is evidence of a current disability, an in-service event, and an indication that the disability may be associated with service. Accordingly, remand is required for an examination. The Board notes that at the May 2017 Board hearing the Veteran testified that his left knee disability may also be secondary to his service-connected dermatitis. On remand, the RO must request an opinion regarding whether the Veteran's left knee disability is secondary to his service-connected dermatitis. Additionally, the Veteran must be provided Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014) notice with regard to secondary service connection. Compensable Initial Rating for Bilateral Hearing Loss The Board finds that further development is necessary before a decision on the merits may be made regarding the issue of entitlement to a compensable initial rating for bilateral hearing loss. The Veteran was provided a VA audiological examination in February 2016. However, at the May 2017 Board hearing, the Veteran testified that since his last VA examination he has been provided a private audiological examination that reflects his hearing loss has worsened. See May 2017 Board hearing transcript. In light of the Veteran's assertions, a new VA examination is required so that the current nature and severity of the Veteran's service-connected disability may be determined. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). As stated above, the Veteran testified that he was provided a private audiological examination at Temple Hospital after his most recent VA examination which reflects that his bilateral hearing loss has increased. See May 2017 Board hearing transcript. On remand, the Veteran must be asked to complete authorization forms concerning any private medical treatment and/or submit copies of any relevant records. 38 U.S.C.A. § 5103A (c); 38 U.S.C.A. § 3.159 (c)(1). Compensable Initial Rating for Dermatitis The Board finds that further development is necessary before a decision on the merits may be made regarding the issue of entitlement to a compensable initial rating for dermatitis of the hands. The Veteran was provided a VA skin condition examination in February 2016. However, at the May 2017 Board hearing, the Veteran testified that since his last VA examination his skin condition has spread to other parts of his body to include his inner thighs and groin. See May 2017 Board hearing transcript. In light of the Veteran's assertions, a new VA examination is required so that the current nature and severity of the Veteran's service-connected disability may be determined. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159; see also Green, 1 Vet. App. at 124; Weggenmann, 5 Vet. App. at 281. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he complete and submit to VA a signed authorization for disclosure of medical records to VA for each private medical health care provider from whom he has received treatment for the disabilities at issue on appeal. The Board is specifically interested in records from Temple Hospital. After receiving any completed authorization form(s), undertake all appropriate efforts to attempt to obtain the identified records. All developmental efforts with respect to this directive should be associated with the claims file. 2. Issue the Veteran and his representative VCAA notice with regard to secondary service connection for left knee disability. 3. After the above development, schedule the Veteran for a VA examination to determine the nature and etiology of all left knee disability demonstrated since service. Provide a copy of this Remand and the record for the examiner to review. All studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: a) Provide a diagnosis for each left knee disability demonstrated since service, found on current examination or in the record. b) Whether it is at least as likely as not (50 percent or greater probability) that any left knee disability, to include, but not limited to, degenerative joint disease, is related to the Veteran's active service. c) If not, whether it is at least as likely as not (50 percent or greater probability) that any left knee disability is proximately due to or the result of service-connected disability(ies), specifically to include his service-connected dermatitis. d) If not, whether it is at least as likely as not (50 percent or greater probability) that any left knee disability is chronically aggravated by service-connected disability(ies), specifically to include his service-connected dermatitis. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. The examiner must note that an opinion to the effect that one disability "is not caused by or the result of" another disability does not answer the question of aggravation and will necessitate a further opinion. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). The examiner must indicate that the record was reviewed. A complete rationale must be provided for each opinion given. 4. Following the development described in the first directive, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected bilateral hearing loss. The claims file and a copy of this Remand must be made available to and reviewed by the examiner. The examination must include all testing deemed necessary by the examiner in conjunction with this request, to include audiometric examination, and speech discrimination testing using the Maryland CNC test. The examiner should report all symptomatology and functional impairment resulting from the Veteran's bilateral hearing loss. 5. Following the development described in the first directive, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected dermatitis. The claims file and a copy of this Remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all symptomatology and functional impairment resulting from the Veteran's dermatitis. 6. After completion of the above, review the expanded record, including the evidence entered since the supplemental statement of the case, and determine whether the benefits sought may be granted. If entitlement to service connection for a left knee disability, to include degenerative joint disease, entitlement to an initial compensable rating for bilateral hearing loss, or entitlement to an initial compensable rating for dermatitis, remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. The Veteran 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). _________________________________________________ U. R. POWELL 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) (2017).