BVA9507949 DOCKET NO. 93-07 459 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a spot on the left lung. 3. Entitlement to service connection for a chronic disability manifested by chronic headaches. 4. Entitlement to service connection for bilateral hearing loss disability. 5. Entitlement to an increased rating for chronic prostatitis, currently evaluated as 20 percent disabling. 6. Entitlement to an increased rating for residuals of a shell fragment wound of the right leg, with injury to Muscle Group XI and a retained foreign body, currently evaluated as 10 percent disabling. 7. Entitlement to an increased rating for arthritis of the right hip, currently evaluated as 10 percent disabling. 8. Entitlement to an increased rating for arthritis of the left hip, currently evaluated as 10 percent disabling. 9. Entitlement to an increased (compensable) rating for residuals of a fracture of the right thumb. 10. Entitlement to service connection for left knee arthritis. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Sabrina M. Tilley, Counsel INTRODUCTION The veteran served on active duty from January 1938 to January 1941, from November 1942 to November 1945 and from February 1946 to February 1960. During the course of the June 1992 RO hearing, the veteran clarified the issues that he intended to pursue on appeal. At the onset, the veteran withdrew the issues of entitlement to an increased rating for malaria and for service connection for a vascular/aorta condition. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran has a left knee condition and hearing loss disability that are due to service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the grant of service connection for left knee arthritis and hearing loss disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. Service connection has been granted for generalized arthritis. 3. Arthritis has been identified in the left knee. 4. Hearing loss disability is attributable to service. CONCLUSIONS OF LAW 1. Left knee arthritis is a subsequent manifestation of a service-connected disease. 38 U.S.C.A. § 5107 (west 1991); 38 C.F.R § 3.303(b) (1994). 2. Hearing loss disability was incurred in peacetime service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303(d), 3.385 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). He has presented a claim that is plausible. We are satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107. Service connection is in effect for generalized osteoarthritis. See 38 C.F.R. Part 4, Code 5003 (1994). Regulations establish that subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (1994). The regional office denied service connection for left knee arthritis because such condition is not shown. The issue before the Board is whether there is arthritis of the left knee. The record establishes that arthritis was diagnosed and an X-ray examination disclosed an osteophyte. We conclude that there is adequate evidence of arthritis and no evidence of an intercurrent cause. Accordingly, service connection is warranted. The veteran has appealed the denial of service connection for hearing loss disability. The provisions of 38 C.F.R. § 3.385 (1993) define when hearing loss disability exists. The United States Court of Veterans Appeals has noted that if the regulation (38 C.F.R. § 3.385) were construed to require retroactively such in-service examination results before service connection for hearing loss could be found, serious questions would arise. However, when applied-as it properly must be-to the current audiometric reports § 3.385 compels the indisputable conclusion that appellant now (emphasis added) suffers from defective hearing as defined by the VA. Therefore, the provisions of 38 C.F.R. § 3.385 do not serve as a bar to service connection. Ledford v. Derwinski, 3 Vet.App. 87, 89 (1992). Rather, it must be determined whether the current hearing loss disability is causally related to in-service noise exposure. Hensley v. Brown, 5 Vet.App. 155, 164 (1993). The fact that hearing loss disability is not identified during service is not fatal to the claim of service connection. The issue is whether the disability is attributable to service. 38 C.F.R. § 3.303(d). "Where the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385." Hensley v. Brown, 5 Vet.App. 155, 159 (1993). The veteran may establish service connection for a current hearing loss disability by submitting evidence that the current disability is causally related to service. Hensley, at 160. At time of separation, the audiometric findings were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 5 (15) 5 (15) 5 (15) 20 (25) LEFT 10 (25) 5 (15) 10 (20) 5 (15) 20 (25) Although such findings do not reflect the presence of hearing loss disability, the findings are not normal. Hensley, at 157. Since service, the veteran has undergone audiometric testing and the findings are consistent with hearing loss disability. The current disability may not be dissociated from the abnormal findings identified during service. ORDER Service connection for left knee arthritis is granted. Service connection for hearing loss disability is granted. REMAND The veteran has argued that he believed that his hypertension, headache disorder and hearing defect developed as a result of medication used for the treatment of his service-connected disabilities. In the alternative, the veteran argued that his headache disorder is related to the service-connected cervical spine arthritis. The veteran has objected to the fact that he has not been afforded special VA examinations. The Board finds that additional examinations with medical opinions would be helpful to resolving the issues raised by the veteran. In particular, the Board notes that judicial interpretation of the matter of secondary service connection, embodied in 38 C.F.R. § 3.310 (1994), requires consideration of whether or not a service- connected disability either causes or aggravates another condition. See Allen v. Brown, No. 93-245 (U.S. Vet. App. March 17, 1995). These considerations require further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet.App. 171, 175 (1991). Hence, the Board requests further development. Any additional reports inpatient or outpatient treatment should be obtained as well. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should take all appropriate action to obtain any additional inpatient or outpatient treatment reports and associate them with the veteran's claims folder. The RO is advised that the veteran had been receiving treatment at March Air Force Base, California for his chronic prostatitis. Any additional reports from this facility should be obtained and associated with the veteran's claims folder. Likewise, the RO should take all appropriate action to obtain and associate any additional reports of treatment provided to the veteran by VA since the January 1991 VA examination. 2. The RO should afford the veteran a cardiovascular examination to determine the medical likelihood that the veteran currently has cardiovascular disease (hypertension) that was caused or worsened by medication used for the treatment of a service connected disability. All indicated special studies and tests should be accomplished. The claims folder should be made available to the examiner for use in studying the case. The examiner is requested to explain the clinical basis for the opinion reached. 3. The RO should afford the veteran a neurological examination in order to determine the current nature and etiology of disability resulting in chronic headaches. The examiner is requested to review the clinical record and to offer an opinion as to whether the veteran's headache disorder is caused or worsened by medication taken for the treatment of a service-connected disability. The medical examiner is also requested to consider the medical likelihood that the veteran's complaints of headaches might be caused or worsened by the service-connected arthritis of the cervical spine. All indicated special studies and tests should be accomplished. The claims folder should be made available to the examiner for use in studying the case. The examiner is requested to indicate the clinical basis for his or her opinion. 4. The RO should afford the veteran an ear examination in order to determine the nature an etiology of any existing hearing defect. The examiner is requested to review the clinical record and to offer an opinion as to the medical probability that the veteran has a hearing defect that was caused or worsened by medication used in the treatment of a service-connected disability. The claims folder should be made available to the examiner who is requested to provide a clinical basis for his or her medical opinion. 5. The RO then should review the veteran's claims for secondary service connection for hypertension, a disability manifested by chronic headache, and hearing loss disability in light of the additional development. If the benefits sought on appeal are not granted, then the veteran and his representative should be provided with a supplemental statement of the case. After he and his representative have been given an opportunity to respond, the case file should be returned to the Board for further appellate review, if necessary. The purpose of this REMAND is 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. The remainder of the issues are held in abeyance pending the completion of the above development. H. N. SCHWARTZ Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).