Citation Nr: 1804835 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-10 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a low back condition. 3. Entitlement to service connection for left knee meniscal tear, status post meniscectomy, with degenerative arthritis, to include as secondary to the service-connected right knee meniscal tear, status post meniscectomy, with degenerative arthritis. 4. Entitlement to an initial disability rating in excess of 10 percent for right knee meniscal tear, status post meniscectomy, with degenerative arthritis. 5. Entitlement to an initial disability rating in excess of 50 percent for mood disorder, not otherwise specified (NOS), also claimed as PTSD and depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from August 1978 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 1992, June 2012, June 2015, and February 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The claim of service connection for a low back condition is on appeal from a November 1992 rating decision. The claim was later adjudicated in a December 1993 rating decision and, most recently, a March 2009 rating decision. The November 1992 rating decision remains on appeal because the Veteran filed a notice of disagreement (NOD) in July 1993, which was within one year of the November 1992 rating decision. In the July 1993 rating decision, he specifically expressed his disagreement with the denial of service connection for the low back condition. The RO informed him in a July 1993 rating decision that it was accepting his NOD as a claim to reopen. The reason for this determination is not clear. In either event, the July 1993 NOD placed the issue into appeal status, which required a statement of the case (SOC). See 38 C.F.R. §§ 3.103(f), 19.26; see also, e.g., Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). An SOC was not issued until the more recent appeal from the March 2009 rating decision after which the Veteran perfected his appeal in March 2014 by filing a substantive appeal. Thus, this is an original claim, and new and material evidence to reopen a prior claim under 38 C.F.R. § 3.156(a) is not needed. The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in April 2017. A transcript of the hearing has been associated with the claims file. In November 2017, the Veteran filed a new claim for an increased rating for the right knee disability. As that issue is currently on appeal, the new claim is included within the scope of this appeal, and no further action is needed with regard to the new claim. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran when further action is required. REMAND The Board has conducted a preliminary review of this matter, but has found that further action is warranted before a final decision may be reached. Hearing Loss The claim of service connection for hearing loss has been denied because there are no audiometric findings meeting VA's definition of a hearing loss disability pursuant to 38 C.F.R. § 3.385. This included testing at a March 2015 VA examination. However, at his Board hearing, the Veteran testified that his hearing was more severe than when tested at the March 2015 VA examination. As such, the Board finds that a new VA examination is warranted to determine the Veteran's current hearing impairment. See 38 C.F.R. §§ 3.326, 3.327 (2015); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Low Back The claim of service connection for a low back condition must be remanded for two reasons. First, there are missing STRs. Specifically, the Veteran maintains that he first injured his back during service in Germany while attempting to lift a generator. His service treatment records (STRs) reflect multiple instances of low back pain. According to an October 1982 emergency room record in his STRs, the Veteran had been having recurring low back pain for two months since injured, which required surgery with a hospital stay. At an October 1987 Retention examination, this hospital stay was given as 7 days. Those hospital records have not been obtained. Service treatment records do not include inpatient clinical (hospital) records. See VBA Manual M21-1, III.iii.2.A.1.e. Types of Records Included in STRs. They are maintained with the records of a military treating facility, or a civilian treating facility. VBA Manual M21-1, IV.ii.1.D.2.a. Location of In-Service Mental Health Treatment Records. For that reason a separate request for include inpatient clinical (hospital) records must be made. See VBA Manual M21-1, III.iii.2.D.3.a. PIES Request Codes Beginning With "C"; III.iii.2.B.4.e. How to Request Clinical Records from NPRC. Here, the Board finds that such action is needed. Furthermore, a new VA examination is needed. The Veteran underwent a VA examination in October 2012. The VA examiner gave a negative opinion, reasoning that the Veteran's back condition is "most likely age related and his morbid obesity contributes the low back pain." However, the VA examiner relied on an inaccurate medical history. Specifically, the VA examiner relied on an "August 18, 2011 C&P PTSD initial evaluation report document[ing] 'he stated that he was in good health during his military service as he reportedly did not experience any serious health problems, illnesses, or injuries.'" The VA examiner did not account for the at least 15 entries in the STRs documenting complaints of recurrent low back pain throughout his service. Thus, the VA examiner relied on an inaccurate medical history, which renders it inadequate. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 439 n. 8 (2011) (Lance, J., concurring) (distinguishing an incorrect factual premise, which has no probative value, from an incomplete factual premise). Accordingly, a new VA examination is needed. Left Knee The Veteran maintains that a left knee disorder is due to cumulative stress of climbing poles as a lineman during service. Alternatively, he contends that a left knee disorder is secondary to the service-connected right knee disability. Board Hr'g Tr. 16. With regard to the direct theory, an October 2015 VA Orthopedic consultation includes the comment that "[o]f note, pt woked [sic] as a lineman in the military, climbing poles, and placed a good deal of stress on his knees, which could be contributing to his problems." And, as it pertains to the secondary theory, the Veteran testified at his Board hearing that he walks with a limp due to his right knee disability. Board Hr'g Tr. 16. A VA examination has not been conducted to address these questions, and the Board finds that one is necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Right Knee A new VA examination is needed to evaluate the ongoing severity of the right knee disability. The Veteran last underwent a VA examination in November 2015. At his Board hearing, the Veteran testified that his symptoms had been getting worse such that he was being considered for surgery. Board Hr'g Tr. 11, 20. In light of these contentions, a remand is necessary to arrange for new VA examination. See 38 C.F.R. §§ 3.326, 3.327 (2015); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). The examination is also needed to comply with the last sentence of 38 C.F.R. § 4.59, and to address the functional limitations during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017); Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Mood Disorder A new VA examination is also needed to evaluate the current severity of the Veteran's mood disorder. He last underwent a VA examination in August 2011. At the Board hearing, the Veteran testified that his symptoms are worse. Board Hr'g Tr. 21. Of note, the claims file contains private and VA medical records, which reflect ongoing treatment for the disability and contain relevant findings. However, they are often incomplete. For instance, a recent VA Mental Health consultation from August 2016 shows a diagnosis of PTSD, chronic; major depression with psychotic features, and compulsive gambling in partial remission. It is not clear to what extent the latter diagnosis is related to the service-connected condition. And, if not related, it is necessary to evaluate the extent to which the Veteran's ongoing symptoms are attributable to that diagnosis. See Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter requesting that he submit or authorize VA to obtain all private (non-VA) health care providers who may have additional records pertinent to the remanded claims. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Obtain all outstanding VA treatment records, including. The request should include non-electronic and/or archived paper records that have been scanned into the VA electronic health record. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Contact the appropriate service department and/or records custodian(s), to include the National Personnel Records Center and the identified hospital, with a request for copies of records of hospitalization in Germany during the Veteran's service in 1981 or 1982. 4. After completing all development set forth in paragraphs 1-2 above, arrange for the Veteran to undergo a VA examination to address the claimed hearing loss. The relevant information in the claims file must be made available to the examiner for review. Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding the history of his symptomatology, and undertake any indicated studies. Based on the examination results, the examiner is asked to provide an expert medical opinion on each of the following questions: (a) Provide a current assessment of the Veteran's hearing impairment. (b) Is it at least as likely as not (i.e., at least equally probable) that any current hearing impairment had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? In answering these questions, please articulate the reasons underpinning each conclusion. That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence justifies the conclusion. A report of the examination should be prepared and associated with the Veteran's VA claims file. 5. After completing all development set forth in paragraphs 1-3 above, arrange for the Veteran to undergo a VA examination to address the claimed low back disorder. The relevant information in the claims file must be made available to the examiner for review. Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding the history of his symptomatology, and undertake any indicated studies. Based on the examination results, the examiner is asked to provide an expert medical opinion on each of the following questions: (a) Provide a current diagnosis for any and all low back disorders found extant. If the Veteran previously had any such medical condition, but it is no longer extant, when did that condition resolve? (b) For each diagnosed disorder, is it at least as likely as not (i.e., at least equally probable) that the disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? In answering question (b), the examiner is particularly asked to address the treatment for complaints during service of low back pain starting with an injury in the early 1980s. The examiner is also asked to consider the statements from the Veteran indicating that symptoms started from the injury during service. The examiner is asked to explain why this evidence makes it more or less likely that a current low back condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported. The examiner should only rely on silence in the medical records if it can be explained (a) why the silence in the record can be taken as proof that the symptom did not occur, or (b) why the fact would have normally been recorded if present. In answering all questions, please articulate the reasons underpinning each conclusion. That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence justifies the conclusion. A report of the examination should be prepared and associated with the Veteran's VA claims file. 6. After completing all development set forth in paragraphs 1-2 above, arrange for the Veteran to undergo a VA examination to address the claimed left knee disorder. The relevant information in the claims file must be made available to the examiner for review. Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding the history of his symptomatology, and undertake any indicated studies. Based on the examination results, the examiner is asked to provide an expert medical opinion on each of the following questions: (a) Provide a current diagnosis for any and all left knee disorders found extant. If the Veteran previously had any such medical condition, but it is no longer extant, when did that condition resolve? (b) For each diagnosed disorder, is it at least as likely as not (i.e., at least equally probable) that the disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? (c) If not directly related to service on the basis of question (b), is any left knee condition proximately due to, the result of, or caused by any other medical condition(s), such as right knee disability? If so, please identify the primary medical condition(s). (d) If not caused by another medical condition, has any left knee disorder been aggravated (made worse or increased in severity) by any other medical condition(s), such as right knee disability? If so, please identify the primary medical condition(s). Also, please identify whether any increase in severity was due to the natural progress of the disease. In answering these questions, please articulate the reasons underpinning each conclusion. That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence justifies the conclusion. A report of the examination should be prepared and associated with the Veteran's VA claims file. 7. After completing all development set forth in paragraphs 1-2 above, arrange for the Veteran to undergo a VA examination to evaluate the severity of his service-connected right knee condition. Accordingly, the examiner is asked to review all relevant records and conduct a clinical evaluation. Based on this review, the examiner is asked to provide an assessment of the current nature of the Veteran's right knee condition. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Accordingly, the examiner is asked to describe the severity, frequency, and duration of all symptomatology associated with the condition, including any associated neurologic manifestations. Please also describe all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups. If the examination is not conducted during a flare-up or after repetition over time, the examiner should ask the Veteran to describe the additional functional loss he suffers during flares and after repetition over time. The examiner may also utilize information from his medical records or other sources available to the examiner to obtain the needed information. Then, the examiner should estimate the functional loss due to flares based on all the evidence of record. If for any reason 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. Please articulate the reasoning underpinning all medical findings. That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence justifies the conclusion. A report of the examination should be prepared and associated with the Veteran's VA claims file. 8. After completing all development set forth in paragraphs 1-2 above, arrange for the Veteran to undergo a VA examination to evaluate the severity of his service-connected psychiatric condition. Accordingly, the examiner is asked to review all relevant records and conduct a clinical evaluation. Based on this review, the examiner is asked to provide an assessment of the current nature of the Veteran's psychiatric condition. To the extent possible, the examiner should identify and distinguish the symptoms associated with the service-connected disability and any symptoms associated a nonservice-connected psychiatric disorder(s). Please articulate the reasoning underpinning all medical findings. That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence justifies the conclusion. A report of the examination should be prepared and associated with the Veteran's VA claims file. 9. After completing all actions set forth in paragraphs 1-8, plus any further action needed as a consequence of the development completed in paragraphs 1-8 above, readjudicate the remanded claims with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations. The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ C. CRAWFORD 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).