Citation Nr: 1815663 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 14-27 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a compensable evaluation for bilateral hearing loss. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for gastroesophageal reflux disease (GERD). 3. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K.M. Walker, Associate Counsel INTRODUCTION The Veteran served in the United States Coast Guard Reserve from August 1983 to July 2006. He had a verified period of active duty from July 2001 to October 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2013 and April 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, and San Diego, California. The Veteran testified at a hearing before the undersigned Veterans Law Judge regarding the issues on appeal in November 2017. A transcript is of record. The Board notes that the Veteran has also perfected an appeal for the issue of whether the reduction in the evaluation of left upper extremity carpal tunnel syndrome from 30 percent to noncompensable was proper. However, that issue has not yet been certified to the Board. Indeed, there is an outstanding request for a hearing on that particular issue. Therefore, the Board will not accept jurisdiction over the issue at this time, but it will be the subject of a subsequent Board decision, if otherwise in order. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As previously noted, the Veteran served in the United States Coast Guard Reserve from August 1983 to July 2006 and had a verified period of active duty from July 2001 to October 2002. There is an indication in the claims file that he also served on active duty from December 1983 to December 1986 and from July 1999 to July 2001; however, there are no records verifying such service. The Veteran also testified during the November hearing that his period of active duty service actually ended in 1987. In addition, the Veteran was noted as having GERD in 2006, but it is unclear as to whether he may have been on active duty, active duty for training (ACDUTRA), or inactive duty for training (INACDUTRA) during that time period. Thus, on remand, the AOJ should attempt to verify his military service and secure any outstanding service records. Moreover, the Veteran was most recently afforded a VA examination in May 2014 in connection with his claim for an increased evaluation for bilateral hearing loss. However, during a VA audiological evaluation in May 2017, the Veteran reported that his hearing was worsening, and testing did reveal speech discrimination scores that were slightly worse than documented in May 2014. The pure tone thresholds needed to evaluate the disability under the rating criteria were not provided in that record. VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that an additional VA examination is needed to ascertain the current severity and manifestations of his service-connected bilateral hearing loss. In addition, during the November 2017 hearing, the Veteran testified that he has seen Dr. B. (initials used to protect privacy) for treatment of his right knee. Thus, on remand the AOJ should attempt to obtain records those treatment records. The Board further notes that the Veteran has not been afforded a VA examination in connection with his claim for service connection for a right knee disorder. He has asserted that the hard surfaces on ships affected his knees and that he had symptoms in service although he did not seek treatment at that time. Therefore, the Board finds that a VA examination and medical opinion are needed to determine the nature and etiology of any right knee disorder that may be present. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for his bilateral hearing loss, GERD, and right knee. A specific request should be made for treatment records from Dr. B. (identified during the November 2017 hearing). After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate the records with the claims file. The AOJ should also secure any outstanding VA medical records. 2. The AOJ should verify the Veteran's service in the United States Coast Guard Reserve. Specifically, the AOJ should verify any periods of active duty from December 1983 to 1987 and from July 1999 to July 2001, as well as any periods of active duty, ACDUTRA, and INACDUTRA in 2005 and 2006. The AOJ should also ensure that the complete service personnel and treatment records have been obtained from such periods. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected bilateral sensorineural hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a pure tone audiometry test. The examiner is requested to review all pertinent records associated with the claims file. The examiner should discuss the effect of the disability on his occupational functioning and daily activities. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file must be made available to the examiner for review. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any right knee disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the service treatment records, the post-service medical records, and lay assertions, including the November 2017 hearing transcript. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether the Veteran has a current right knee disorder that is causally or etiologically related to his military service, including any injury, symptomatology, or duties therein. In rendering this opinion, the examiner should address the Veteran's November 2017 testimony that the hard surfaces on ships affected his knees and that he had symptoms in service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability is viewed in relation to its history," copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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). _________________________________________________ J.W. ZISSIMOS 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).