Citation Nr: 1753876 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 10-39 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for tinnitus. REMAND The appellant is a veteran (the Veteran) who had active duty service from August 1977 to July 1981. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2017 Order of the United States Court of Appeals for Veterans' Claims (Veterans Court). The appeal originated from a September 2009 rating decision of the RO in Cleveland, Ohio. In July 2016, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e) (2017). A transcript of the hearing is associated with the claims file. In an October 2016 decision, the Board dismissed a withdrawn claim of entitlement to service connection for a lumbar spine disorder, and denied service connection for a right knee disorder, left ear hearing loss, and tinnitus. The Board also denied a rating in excess of 30 percent for service-connected left knee instability, and granted separate compensable ratings for left knee arthritis with limited motion, and a left knee meniscal condition. The Veteran appealed the Board's decision to the Veterans Court. In a June 2017 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board's decision to the extent it denied service connection for a right knee disorder, left ear hearing loss, and tinnitus, and remanded those issues back to the Board for additional development consistent with the Joint Motion. The parties agreed that the appeal should be dismissed as to the other matters. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. Regarding left ear hearing loss and tinnitus, the parties to the Joint Motion agreed that a July 2009 VA medical opinion was inadequate; that the Board erred in relying on that opinion; and, that remand for a new opinion was warranted. They specified that the July 2009 VA examination report was inadequate because the examiner did not adequately discuss whether in-service noise exposure could have caused the Veteran's left ear hearing loss and/or tinnitus after service, and the examiner did not provide an adequate rationale for his opinion because that examiner's simple recitation of facts was not reasoned analysis. While not characterized as an agreement or stipulation of the parties, the appellant "without Appellee's opposition," referred to a statement of the July 2009 VA examiner that the Veteran reported his tinnitus "began [a] long, long time ago," but that he could not state when, and that there was no indication that the Veteran had tinnitus at service separation. However, at the July 2016 Board hearing, the Veteran testified that he had ringing in his ears in service. The appellant requested that the Veteran's testimony be adequately addressed. Regarding the right knee, the parties agreed that remand for a VA examination was warranted. The parties noted that the Board's finding that the Veteran had submitted no evidence other than his own statements showing a current diagnosis of a right knee disorder did not discuss a January 2016 VA examination report which found that there was "objective evidence of crepitus" in the right knee. Since the Joint Motion, the Veteran has submitted a medical opinion from a private provider relating his right knee disorder to his service-connected left knee disorder. The private examiner attributed the right knee disorder to "overloading" of his right knee due to a leg-length discrepancy. The Joint Motion requires a remand for a "VA examination." The private opinion is clearly not from VA, nor is there any indication that an examination was conducted. Therefore, it does not satisfy the explicit terms of the Joint Motion. Moreover, the opinion refers to an August 5, 2016 office note, not of record, and states that the Veteran has been under his care since June 29, 2016, an indication that there are likely other treatment reports which are not of record. The Board is bound by the findings contained in the Joint Motion, as adopted by the Veterans Court. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the prior actions of the appellate court with respect to the same claim). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any outstanding VA or private medical records. Take appropriate efforts to obtain any records identified. Specifically obtain treatment records from the Veteran's private physician, K. Ouweleen, M.D., at Licking Memorial Orthopedics. 2. Schedule an appropriate VA examination to determine the nature and etiology of the Veteran's left ear hearing loss and tinnitus. The relevant documents in the electronic file should be made available to the VA examiner. The VA examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that left ear hearing loss is causally or etiologically related to the Veteran's active service. The VA examiner is also requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that tinnitus is causally or etiologically related to the Veteran's active service. In so doing, the examiner is asked to consider the Veteran's account as to the onset of ringing in his ears. 3. Schedule an appropriate VA examination to determine the nature and etiology of any right knee disorder. The relevant documents in the claims file should be made available to the VA examiner. The VA examiner is asked to provide all current diagnoses regarding the right knee. If a current diagnosis is confirmed, the VA examiner is then requested to offer an opinion as to whether such disorder is at least as likely as not (i.e., to at least a 50-50 degree of probability) causally or etiologically related to the Veteran's active service. In so doing, please review and consider the opinion of May 31, 2017, opinion of K. Ouweleen, MD. If no relationship to service is found, the VA examiner is asked to offer an opinion as to whether any confirmed disorder is at least as likely as not (i.e., to at least a 50-50 degree of probability) related by causation, or by permanent worsening beyond the natural progress of the disorder, to any service-connected disability, to include the service-connected left knee disabilities. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Readjudicate the remanded claims. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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). These claims 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). _________________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD L. Cramp, Counsel Copy mailed to: The American Legion 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).