Citation Nr: 0004495 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 97-10 913 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for defective hearing in the right ear. 2. Evaluation of service-connected post-operative residuals of a ligament repair of the right knee, evaluated as 10 percent disabling from February 29, 1992. 3. Evaluation of service-connected retropatellar pain syndrome of the left knee, evaluated as noncompensably disabling from February 29, 1992, and as 10 percent disabling from July 15, 1998. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from June 1981 to February 1992. By a decision entered in December 1992, the RO granted service connection for post-operative residuals of a ligament repair of the right knee and retropatellar pain syndrome of the left knee, assigned evaluations therefor of 10 and zero percent, respectively, and denied service connection for defective hearing. The RO notified the veteran of its decision by a letter dated in January 1993, and informed him that the award of disability compensation benefits would be offset to recoup separation pay he had received from the military. The veteran initiated an appeal to the Board of the Veterans' Appeals (Board), including in his notice of disagreement a statement of dissatisfaction with regard to the recoupment of separation pay from his VA compensation benefits. A statement of the case (SOC) with regard to these issues was furnished to the veteran in February 1993, and a substantive appeal was received in March 1993. Based upon a review of additional evidence received, the RO, by a decision entered in February 1994, granted service connection for defective hearing in the left ear and assigned a zero percent (noncompensable) evaluation therefor. The RO confirmed its December 1992 decision in all other material respects. Subsequently, in June 1998, the Board entered a decision denying the veteran's claim that he was entitled to receive VA disability compensation benefits without regard to recoupment of separation pay he had received. The remaining claims on appeal were remanded for additional development. In August 1999, while the case was in remand status, the RO increased the veteran's rating for service-connected retropatellar pain syndrome of the left knee from zero to 10 percent, effective from July 15, 1998. The RO confirmed its prior determination on the remaining claims, and returned the case to the Board in November 1999. In its June 1998 remand, the Board framed the veteran's knee claims in terms of his entitlement to an increased rating. More recently, however, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has indicated that a distinction must be made between a veteran's dissatisfaction with the initial rating assigned following a grant of service connection (so-called "original ratings"), and dissatisfaction with determinations on later filed claims for increased rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Inasmuch as the knee claims here in question were placed in appellate status by a notice of disagreement (NOD) expressing dissatisfaction with the original ratings assigned, the Board has re-characterized those claims as set forth on the first page of this decision and preliminary order. FINDING OF FACT The available evidence shows that the veteran had a right ear hearing disability at the time of his enlistment examination in May 1981. The evidence does not establish that that disability underwent a chronic or permanent worsening during service. CONCLUSION OF LAW Service connection for defective hearing in the right ear is denied. 38 U.S.C.A. §§ 1110, 1111, 1131, 1132, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.385, 3.655 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends that service connection should be granted for defective hearing in the right ear. He maintains that his hearing tests in the military were abnormal. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110 (West 1991); 38 C.F.R. §§ 3.303(a), 3.306 (1999). Service connection is also warranted where the evidence shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. The Court has held that evidence pertaining to each of three elements must be submitted in order to make a claim of service connection well grounded. There must be (1) competent (medical) evidence of a current disability, (2) competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service, and (3) competent (medical) evidence of a nexus, or link, between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In the present case, the Board finds that the claim of service connection for defective hearing in the right ear is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The record shows that the veteran had a right ear hearing disability at the time of his enlistment examination in May 1981, see 38 C.F.R. § 3.385 (1999), and records of subsequent in-service audiometric testing in May and August 1991 reveal what appears to be an increase in disability at some frequencies between 2,000 and 4,000 hertz, as compared to 1981 data. (The results of the May and August 1991 tests are somewhat inconsistent, but both tests revealed higher puretone audiometric scores in the right ear at 4,000 hertz, as compared to 1981 data.) Consequently, it appears that the second element required for a well-grounded claim (denoted (2) above) has been satisfied. See 38 U.S.C.A. §§ 1111, 1132, 1153 (West 1991); 38 C.F.R. §§ 3.304, 3.306 (1999). Moreover, given that the veteran's separation examination contains audiometric data indicative of a right ear hearing disability, and in light of the fact that he filed the present claim of service connection in April 1992, only a very short time after his release from service, the Board finds that he has sufficiently established both current disability and a nexus to service. See Hampton v. Gober, 10 Vet. App. 481 (1997) (Where a claim for benefits was filed one month after the veteran's separation from service, the diagnosis of a disorder in a separation examination report was deemed to constitute evidence not only of current disability, but also of a relationship between that disability and service.). It was because the claim is well grounded that the Board remanded the claim to the RO for additional development in June 1998. In its remand, the Board noted that it was unclear whether the veteran's pre-existing impairment had undergone any worsening during service. The Board observed that VA audiometric testing in June 1992 did not reflect any worsening of the condition as compared to 1981 data, and that the June 1992 VA test results actually appeared to reflect an overall improvement in his right ear hearing acuity since the time of his entry into service. Because it was unclear whether the variations in data were reflective of actual changes in the veteran's hearing acuity, or whether they were more likely artifacts of audiometric testing, and because it was unclear whether any worsening could be attributed to the natural progress of the condition, the Board remanded the claim to the RO for an examination that was to include a medical opinion on these matters. Unfortunately, the record shows that the veteran did not appear for the examination as scheduled, and that he has not responded to a communication from the RO, dated in January 1999, asking him if he is willing to report for such an examination. Consequently, because the appeal of this issue arises from the denial of an original claim of service connection, the Board must now proceed to an adjudication of the claim based upon the available evidence of record. See 38 C.F.R. § 3.655(b) (1999) ("When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record."). Based upon a review of the evidence currently available, the Board finds that the preponderance of the evidence is against the claim of service connection for defective hearing in the right ear. Although some of the evidence suggests that the veteran's pre-existing hearing disability may have undergone a periodic or intermittent increase in severity during service, the June 1992 VA audiometric tests establish that his condition did not undergo a chronic or permanent worsening during service. Indeed, as noted above, those results reflect an overall improvement in his right ear hearing acuity as compared to 1981 data. Additionally, there is no suggestion that the VA examination results were not an accurate reflection of hearing acuity loss at that time. The presumption of aggravation is therefore inapplicable. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306 (1999). See, e.g., Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991) ("temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened"). Because the presumption of aggravation does not apply, and because no competent evidence has been received to otherwise show that the veteran's right ear hearing disability underwent a chronic or permanent worsening during service, the claim must be denied. ORDER Service connection for defective hearing in the right ear is denied. (CONTINUED ON NEXT PAGE) REMAND When the Board remanded parts of this case to the RO in June 1998, the Board requested, among other things, that the veteran be examined for purposes of assessing the relative severity of his service-connected knee disorders. The Board provided specific instructions for the examiner, and listed a number of matters that were to be discussed or commented upon in the report of the examination. Unfortunately, the requested development has not been completed. Although the veteran was examined by a VA contractor in July 1998, the examining physician did not include in the report of that examination much of the information requested by the Board. Indeed, it appears that the examination may have been conducted without reference to the Board's instructions. Moreover, while the RO recognized that the report was deficient, and returned it to the examiner for a supplemental report, the supplemental report does not contain all of the detail requested in the Board's remand. The Court has held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Given those pronouncements, and the fact that the development sought by the Board in this case has not been completed, another remand of the veteran's knee claims is now required. 38 C.F.R. § 19.9 (1999). For the reasons stated, this case is REMANDED to the RO for the following actions: 1. The RO should schedule the veteran for another orthopedic examination for purposes of assessing the relative severity of his service-connected knee disorders. The examiner should review the claims folder and a copy of this remand before examining the veteran. All indicated tests should be conducted. The examiner should provide a detailed statement as to extent to which the veteran's service-connected knee symptomatology affects function and employability. The examiner should specifically indicate, with respect to each knee, whether the knee is ankylosed and, if so, whether it is ankylosed in full extension, or in flexion between zero and 10 degrees, 10 and 20 degrees, 20 and 45 degrees, or at 45 degrees or more; whether there is any evidence of recurrent subluxation or lateral instability and, if so, whether such subluxation and/or lateral instability is best described as slight, moderate, or severe in degree; whether the semilunar cartilage is dislocated and, if so, whether such dislocation is manifested by frequent episodes of "locking," pain, and effusion into the joint; whether the semilunar cartilage has been removed and, if so, whether there are present symptoms associated with such removal; and whether there is genu recurvatum and, if so, whether it is acquired, traumatic, and manifested by objectively demonstrated weakness and insecurity in weight-bearing. The examiner should also indicate whether there is any evidence of impairment of the tibia or fibula in terms of malunion or nonunion. If there is evidence of malunion of the tibia or fibula, the examiner should indicate whether the resulting knee disability is best described as slight, moderate, or marked in degree. If there is evidence of nonunion of the tibia or fibula, the examiner should indicate whether loose motion is present and whether a brace is required. The examiner should also fully describe any surgical scars identified in the vicinity of the knees, and should indicate whether there is any evidence that the scars are poorly nourished with repeated ulceration, tender and painful on objective demonstration, or otherwise causative of limitation of function. Finally, the examiner should conduct range of motion studies on each knee. The examiner should first record the range of motion observed on clinical evaluation, in terms of degrees of flexion and extension. If there is clinical evidence of pain on motion, the examiner should indicate the degree of flexion and/or extension at which such pain begins. Then, after reviewing the veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically) due to these factors. Specifically, the examiner should indicate, with respect to each knee, whether the overall disability picture, in terms of limited motion, and including weakness, excess fatigability, incoordination, and/or pain due to repeated use or flare-ups, is best equated with flexion which is limited to 15, 30, 45, 60, or more than 60 degrees, and/or extension which is limited to 45, 30, 20, 15, 10, 5, or less than 5 degrees. A complete rationale for all opinions should be provided. 2. After the above development has been completed, the RO should review the report of the examination to determine whether it complies with the requirements of the foregoing paragraph. If it does not, the report should be returned as inadequate, and arrangements should be made to ensure full compliance with the remand instructions. 3. The RO should thereafter take adjudicatory action on the veteran's knee claims. In so doing, the RO should consider and apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, and the Court's decision in DeLuca v. Brown, 8 Vet. App. 202 (1995). The RO should also give consideration to the assignment of "staged ratings," in accordance with the principles set out in Fenderson v. West, 12 Vet. App. 119 (1999), and to the assignment of separate evaluations for (1) laxity and (2) limitation of motion in each knee in accordance with VAOPGCPREC 23-97 (July 1, 1997), if appropriate. If any benefit sought is denied, a supplemental SOC (SSOC) should be issued. After the veteran and his representative have been given an opportunity to respond to the SSOC, the claims folder should be returned to this Board for further appellate review. No action is required by the veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, the Veterans Benefits Administration's Adjudication Procedure Manual, M21-1, Part IV, directs ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. MARK F. HALSEY Member, Board of Veterans' Appeals