Citation Nr: 1803661 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 16-36 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a right knee disability, to include osteoarthritis. 2. Entitlement to service connection for a left knee disability, to include osteoarthritis. 3. Entitlement to service connection for a left shoulder disability. 4. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1959 to March 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2017, the Veteran appeared and testified at a Travel Board hearing before the undersigned Veterans Law Judge in Houston, Texas. A transcript of the hearing is associated with the claims file. The Board notes that the Veteran has perfected an appeal of his claim to entitlement to service connection for sleep apnea. However, as the Veteran requested a Board hearing in this matter that has yet to occur, the Board will not make a determination on entitlement to service connection for sleep apnea at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). For the reasons set forth below, this appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that his bilateral knee and left shoulder disabilities were caused by injuries he sustained while playing football and basketball for the United States Army while in service overseas. Additionally, the Veteran contends that his bilateral hearing loss has worsened since his last VA examination. The Board finds that a remand is necessary to obtain new VA examinations, as the ones of record are inadequate or out of date. A. Bilateral Knee and Left Shoulder The Veteran contends that he injured his right knee while playing basketball for the company basketball team in 1960 to 1961. The Veteran further contends that he dislocated his left knee while playing football for the United States Army in Europe. The Veteran contends that he was assigned temporary duty to the football teams from August to December in 1960 and 1961. The Veteran submitted documents establishing that he was on the team and played football in 1960 and 1961. Finally, the Veteran contends that he dislocated his left shoulder in a football game while he was in Lyon, France, playing against other United States Army and United States Air Force teams. Additionally, a buddy statement was submitted in August 2014 from an individual who played football with the Veteran during the 1960 and 1961 seasons in Europe. The buddy statement corroborated that the Veteran dislocated his shoulder while playing football in 1960. To establish direct service connection, there must be sufficient evidence of a current disability; medical or, in certain cases, lay evidence of an in-service disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In terms of a current diagnosed disability, the Veteran's VA medical treatment records establish that the Veteran has a current diagnosed disability of the right and left knee, and the left shoulder. Records establish that the Veteran has been diagnosed with joint osteoarthritis in the left and right knee. Records also establish that the Veteran was diagnosed with rotator cuff tendonitis of the left shoulder. A review of the Veteran's service treatment records establishes that no issues were reported in the Veteran's induction examination in January 1959. However, in March 1961, the Veteran reported trouble with his left shoulder due to a football injury. The physician noted that the Veteran had a full range of motion. There was also an indication in April 1961 that the Veteran had an x-ray of his right knee. Additionally, no issues regarding the Veteran's knees or shoulder were indicated in the January 1962 separation examination. Finally, there is no indication in the Veteran's service treatment records of an injury of his left knee. However, during his October 2017 Board hearing, the Veteran's representative indicated that the Veteran did not report these issues in his separation examination because he didn't want anything preventing him from returning home. The Veteran also claimed that he was seen by a team doctor for his injuries that occurred overseas and that this was why reports of these injuries were not in his record. The Veteran was afforded a VA examination, conducted by QTC Medical Services, for his bilateral knee disabilities in July 2017. The physician opined that the claimed bilateral knee disabilities were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service, event, or illness. The physician reasoned that although the right knee injury was mentioned in the Veteran's service treatment records, subsequent x-ray and examinations do not mention the knee injury. Therefore, the physician indicated that the right knee injury likely resolved itself. The physician also noted a gap of medical records from the time of the Veteran's discharge. The physician concluded that the Veteran's current arthritis in both of his knees is less likely due to the injury that occurred in service. Additionally, the Veteran was provided a VA examination, conducted by QTC Medical Services, for his left shoulder in July 2017. The physician opined that the Veteran's claimed left shoulder condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The physician reasoned that although the Veteran sustained a shoulder injury in 1961, he was treated for it. The physician further reasoned that the Veteran did not mention a shoulder injury or shoulder pain on his separation examination the following year, and therefore, the condition likely resolved itself within one year. Once VA undertakes the effort to provide an examination, or obtain an opinion, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that both of the July 2017 examinations of the Veteran's bilateral knee and left shoulder disabilities were inadequate. These examinations did not provide a sufficient rationale as to why the Veteran's current diagnosed disabilities were not related to the injuries that the Veteran sustained in service, but rather focused on the fact that the Veteran did not report these injuries on his separation examination. Additionally, the physician did not specifically address the Veteran's contentions regarding injuries he sustained to his left knee in service, or provide an opinion as to whether the left knee disability was secondary to the right knee disability. Thus, a remand for new examinations is necessary to determine the etiology if the Veteran's claimed bilateral knee and left shoulder injuries. B. Bilateral Hearing Loss Additionally, the Veteran contends that he is entitled to an initial compensable rating for his bilateral hearing loss, which was service-connected in an August 2015 rating decision. The Veteran was most recently provided a VA examination, conducted by QTC Medical Services, in September 2016. The average puretone thresholds were 51.25 decibels in the right ear and 58.75 decibels in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 88 percent in the left ear. However, the Veteran subsequently indicated during his October 2017 Board hearing that his hearing has worsened since this last examination. He reported perceiving the worsening in several ways, including an inability to hear the television and difficulty hearing people speaking. Consequently, as there may have been a worsening of the Veteran's bilateral hearing loss, the Board finds that a new examination is needed to fully and fairly evaluate the Veteran's claim. See Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). 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 Veteran's claims file any outstanding VA treatment records related to the claims on appeal. 2. Forward the Veteran's electronic claims file to the examiner who conducted the July 2015 examinations of the Veteran's bilateral knee and left shoulder disabilities, or, if unavailable, to another suitably qualified clinician, for supplemental opinions as to the nature and etiology of the Veteran's bilateral knee and left shoulder disabilities. It is left to the examiner's discretion whether to reexamine the Veteran. Following the review of the claims file, the examiner should identify any currently diagnosed bilateral knee or left shoulder disabilities, and provide opinions on the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed right knee disability is related to the injuries the Veteran sustained while playing football and basketball in service. The examiner should explicitly discuss the injuries that he sustained while in service. (b) Whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed left knee disability is related to the injuries the Veteran sustained while playing football service. The examiner should explicitly discuss the injuries that he sustained while in service. (c) Only if the examiner finds that the right knee is related to the injury in service, and that the left knee injury is unrelated to service, then provide the following opinion as to the left knee: whether it is at least as likely as not (50 percent probability or greater) that the Veteran's left knee disability is secondary (caused or aggravated) to the right knee disability. (d) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's left shoulder disability is related to the injuries the Veteran sustained while playing football in service. A complete rationale for all opinions should be provided. If the examiner cannot provide the above requested opinions without resorting to speculation, it should be so stated and a rationale provided for that medical conclusion. 3. Afford the Veteran a VA examination to determine the current severity of his bilateral hearing loss. In addition to dictating objective test results, the examiner's report should describe the effects of the Veteran's disability on his occupational functioning. A complete rationale for all opinions should be provided. 4. Thereafter, readjudicate the issues on appeal based on all the evidence of record, and if any benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case. The Veteran should be provided a reasonable period to respond before the case is returned to the Board for review. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).