Citation Nr: 1306288 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-19 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for a low back disability. 5. Entitlement to service connection for a left wrist disability. 6. Entitlement to service connection for a left ear hearing loss disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and C.A. ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from June 1986 to May 1994 with additional unverified periods of ACDUTRA and INACDUTRA in the Naval Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied entitlement to service connection for an acquired psychiatric disability, a bilateral hearing loss disability, tinnitus, low back strain, a right knee disability, a left knee disability, a left wrist disability, sleep apnea, and high cholesterol. In November 2010, a Board hearing was held at the VA Central Office in Washington, D.C. before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the claims folder. In a September 2011 decision, the Board denied the Veteran's claims for service connection for sleep apnea and high cholesterol and remanded the Veteran's other claims to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. While on remand, service connection was granted for tinnitus and a right ear hearing loss disability, thus satisfying the Veteran's appeal in full regarding those issues. The remaining issues have returned to the Board for readjudication. Evidence has been associated with the Veteran's claims folder accompanied by a waiver of local consideration. This waiver is contained in the Veteran's claims folder. See 38 C.F.R. §§ 19.9, 20.1304(c) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for an acquired psychiatric disorder and a right knee disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The competent and probative evidence of record does not support a finding that the Veteran's currently diagnosed left knee disorder is related to his military service. 2. The competent and probative evidence of record does not support a finding that the Veteran's currently diagnosed low back disorder is related to his military service. 3. The competent and probative evidence of record does not support a finding that the Veteran's currently diagnosed left wrist disorder is related to his military service. 4. The competent and probative evidence of record supports a finding that the Veteran's currently diagnosed left ear hearing disability is related to his military service. CONCLUSIONS OF LAW 1. Service connection for a left knee disorder is not warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Service connection for a low back disorder is not warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 3. Service connection for a left wrist disorder is not warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 4. Service connection for a left ear hearing loss disability is warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the effective-date element of the claim, by letters mailed in December 2008 and June, September and December 2009, prior to the initial adjudication of his claims. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims and there is no reasonable possibility that further assistance would aid in substantiating these claims. The evidence of record includes statements from the Veteran and other individuals, service treatment records, as well as VA and private treatment records. Many of the Veteran's service treatment records are not associated with the claims folder. The Veteran was advised in a June 2, 2009 letter that his service treatment records were not available. The Board is cognizant of Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999), wherein the Court elaborated on the VA's responsibility to obtain a veteran's service treatment records. The Board finds, however, that no useful purpose would be served in remanding the matters decided herein for more development. In this case, the RO has attempted to locate the Veteran's service treatment records. The RO submitted a request to the Records Management Center in December 2008, asking for all available military medical records. In response to the request by the RO, the Records Management Center provided available service treatment records for the Veteran's periods of active and reserve duty, and indicated that no additional service treatment records were available. Following receipt of these records, the RO documented in a June 2009 memorandum that the records are unavailable for review. There is no indication that the service treatment records still exist. The Board observes that, where records are unavailable, "VA has no duty to seek to obtain that which does not exist." See Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993). VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. So it is in this case. In general, VA's duty to assist includes obtaining records from the Social Security Administration (SSA). See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The record demonstrates that in March 2010, the RO attempted to obtain the Veteran's SSA records. In a subsequent March 2010 report, SSA informed VA that it did not have any of the requested records for the Veteran because the Veteran's SSA folder was destroyed. Based upon this record, the Board finds that additional attempts to obtain these records, if any, would be futile. The Veteran's VA treatment records have been associated with the claims file. In September and October 2012, the Veteran was afforded VA compensation and pension examinations in connection with the claims decided herein. Thus, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has retained the services of a representative. He presented testimony during a VA Central Office hearing. Accordingly, the Board will proceed to a decision as to the issues of entitlement to service connection for a left knee disorder, a low back disorder, a left wrist disorder, and a left ear hearing loss disability. Legal Criteria Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to establish service connection for the claimed disorder, there must be (1) competent and credible evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The term "Veteran" is defined in 38 U.S.C.A. § 101(2) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Active duty for training (ACDUTRA) is defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). The term inactive duty training (INACDUTRA) is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2010). As has been explained earlier, most of the Veteran's service treatment records are unavailable for review. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) [the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases]. After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service Connection for Left Knee, Low Back, and Left Wrist Disabilities The February 1994 separation examination report from the Veteran's period of active duty reflects that he had a normal spine and upper and lower extremities. The Veteran indicated on a February 1995 Report of Medical History (RMH) that he did not experience arthritis, rheumatism, bursitis, lameness, recurrent back pain, or "trick" or locked knee. An RMH from December 1996 contains the Veteran's report that he did not experience arthritis, rheumatism, bursitis, lameness, recurrent back pain, or "trick" or locked knee. The Veteran's March 2004 reserves enlistment examination reflects that he had a normal spine and upper and lower extremities. The Veteran indicated on an RMH completed in March 2004 that he did not experience recurrent back pain or any back problem, impaired use of his hands or arms, swollen or painful joints, or knee trouble. In April 2009, a Veteran complained of bilateral knee pain to a VA treatment provider. The examiner gave an assessment of knee arthralgias. A May 2009 follow-up record contains the Veteran's complaints of knee and back pain. The Veteran went to a private emergency room in July 2009 with severe back pain. The attending physician gave an assessment of acute back strain. Also in July 2009, the Veteran received steroid injections to both of his knees at a VA facility. The Veteran again received knee steroid injections in March 2010. An MRI taken of the left knee at a private facility in June 2010 revealed no sign of acute internal derangement. The report showed the presence of mild chondromalacia with fibrillation of the cartilage. At the Veteran's November 2010 Board hearing, the Veteran related that he had to a lot of bending and kneeling while on active duty in order to work on equipment. He indicated that he had to ascend and descend many stairs to access his shop location. He remarked that his back, knees, and left wrist had all hurt since his time on active duty. He added that once while he was on duty with the reserves he was working on a tractor and his left wrist gave way. In October 2010, the Veteran submitted lay statements from people who had observed his knee and back pain since his time on active duty. A VA treatment record from November 2010 reflects that the Veteran received steroid injections in his knees. On VA joints examination in September 2012, the examiner noted that the Veteran had been diagnosed with lumbar sprain, knee sprains, and wrist sprain. He recorded the Veteran's report of injuring his back, knees, and left wrist while on active duty. The examiner noted that the Veteran currently worked as a mechanic. The Veteran reported that he had to wear bilateral knee braces and had constant pain in his left wrist, bilateral knees, and lumbar spine. The examiner noted that imaging studies of the thoracolumbar spine had been performed, and no arthritis or other spine disability was found. The bilateral knees were normal to anterior, posterior, and medial-lateral instability testing. The examiner further noted that imaging studies of the bilateral knees were negative for arthritis or patellar subluxation. An X-ray of the left wrist was normal. The examiner reviewed the claims file and commented that the Veteran did not list any problems with his back knees, or left wrist at his February 1994 separation examination from active duty. Further, the examiner noted that the Veteran reported being in good health when he enlisted in the reserves. The examiner opined that as the Veteran did not list any problems with his back, knees, or left wrist during his physical examinations on active duty and while in the reserves, any present disorders were essentially not related to service. As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3)a nexus between the current disability and an injury during either active duty, ACDUTRA or INACDUTRA or a disease during a period of active duty or ACDUTRA. See Snedden, supra. As to element (1), the September 2009 VA examiner indicated that the Veteran had diagnoses of lumbar strain, knee sprain, and wrist sprain. Element (1) is therefore satisfied as to the claims for a low back disorder, a left knee disorder, and a left wrist disorder. With regard to element (2), the Board notes that the Veteran's available service treatment records do not document any occurrence of or treatment for injuries to his knee, back, or left wrist. However, as the Board discussed in the September 2011 remand, the Veteran is competent to attest to experiencing injuries to his back, knees, and left wrist. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Therefore, although the Veteran as a lay person has not been shown to be capable of making medical conclusions, he is competent to report the circumstances of in-service back, knee, and left wrist injuries. There is nothing in the claims folder to suggest that the Veteran did not sustain the injuries as described during his Board hearing. Moreover, the Veteran's brother testified that the Veteran reported back and bilateral knee pain during his period of active duty. Accordingly, the Board found in the September 2011 remand that evidence of an in-service injury is arguably met. However, turning to element (3), nexus, the Board finds that the weight of the evidence is against a finding of a causal relationship between the Veteran's currently diagnosed low back disorder, left knee disorder, left wrist disorder, and service. The Board recognizes that the question of nexus in this case, i.e. the relationship, if any, between the Veteran's claimed disorders disease and his military service, is essentially medical in nature. In this matter, the September 2012 VA examination report is highly probative, as it is based on a thorough review of the Veteran's medical records and examination of the Veteran, consistent with the other evidence of record, supported by a detailed rationale, and rendered by a medical professional. See supra Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has submitted no competent medical nexus evidence contrary to the VA opinion. The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his claim; he has not done so. See 38 U.S.C.A. § 5107(a) (2012) (noting it is a claimant's responsibility to support a claim for VA benefits). Moreover, the Veteran, while competent to report his symptoms, both past and present, is not competent to render a medical opinion in this case as such opinion linking his symptoms to an underlying disabling condition is beyond the scope of a layperson. That is, he is not compete to link his symptoms over the years to his currently diagnosed back, left knee, or left wrist disabilities. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). The Board is mindful that 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Further, "lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau, supra; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board observes that lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person (e.g. any evidence not requiring that the proponent has specialized education, training, or experience). 38 C.F.R. § 3.159(a)(2). As such, the Veteran his friends and relatives are competent to attest to the Veteran's experiencing knee, back, and wrist pain. However, competency must be distinguished from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, the lay statements and Veteran's remarks concerning a continuity of back, left knee, and left wrist symptoms are not consistent with the February 1994 service separation examination and March 2004 reserve service examination which reveal no complaints of or treatment for low back, left knee, and left wrist disorders. The Board finds that the 1994 and 2004 reports of history, taken in conjunction with physical examinations are far more probative than any recent assertions that the Veteran's low back, left knee, and left wrist symptoms have persisted since service. Indeed, the February 1994 separation examination and March 2004 reserve examination directly contradict any current assertion that he has had low back, left knee, and left wrist symptoms since discharge from active duty. Thus, the Veteran's reports of a continuity of symptoms since service is given less weight than the opinion reached by the VA examiner. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for low back, left knee, and left wrist disorders. The benefit sought on appeal is accordingly denied. Service Connection for Hearing Loss, Left Ear The February 1994 separation examination report from the Veteran's period of active duty contains the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 10 5 0 0 5 The Veteran indicated on a February 1995 Report of Medical History that he did not experience hearing loss. An RMH from December 1996 contains the Veteran's report that he did not experience hearing loss. The Veteran's March 2004 reserves enlistment examination report contains the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 15 5 5 10 15 The Veteran indicated on an RMH completed in March 2004 that he did not experience hearing loss. On reserve audiometric testing in November 2004, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 0 0 5 5 10 A January 2009 private audiology examination report reflects that the Veteran had a mild to moderate sensorineural hearing loss. The report contains an uninterpreted graph of the audiogram testing results. The speech discrimination score was 92 percent in the left ear. At the Veteran's November 2010 Board hearing, the Veteran related that he was exposed to a lot of loud noises while he was on active duty. He stated that he worked on a flight deck fixing equipment that towed aircraft. He said that they were issued hearing protection, but it was not very effective. On VA audiological examination conducted in October 2012, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 20 15 20 25 The examiner indicated that the use of a speech discrimination score was not appropriate for the Veteran because of language difficulties, cognitive problems, or inconsistent speech discrimination scores that made the combined use of puretone average and speech discrimination scores inappropriate. The examiner gave a diagnosis of sensorineural hearing loss in the left ear and opined that the hearing loss was at least as likely as not caused by or a result of the Veteran's military service. The examiner then specified that the Veteran did not have current left ear hearing loss for VA purposes per 38 C.F.R. § 3.385. As an initial matter, the Board notes that a hearing loss disability for VA benefit purposes exists when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). The January 2009 audiology report of record reflects that the Veteran's left ear speech recognition score was 92 percent. As such, the Veteran does have a hearing loss disability in the left ear for VA compensation purposes. Therefore, the question to be decided in the present appeal is whether such hearing loss of the left ear is associated with the Veteran's active duty. In this regard, the Board notes that the October 2012 VA audio examiner gave a positive nexus opinion between the Veteran's hearing loss and his service. The examiner explained that the Veteran's service as an aviation support equipment technician indicated that he was likely exposed to noise. [Parenthetically, the Board notes that the October 2012 VA audio examiner's opinion formed the basis of the grant of service connection for tinnitus and a right ear hearing loss disability in a November 2012 AMC decision.] The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). However, the threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Board finds that the January 2009 private audiology examination report shows that the Veteran has a left ear hearing loss disability for VA disability purposes, and the October 2012 VA audiologist's opinion provides a competent and credible link between the Veteran's currently demonstrated left ear hearing loss disability and his exposure to noise while on active duty. Accordingly, the benefit-of-the-doubt rule applies and service connection for a left ear hearing loss disability is warranted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a left wrist disability is denied. Entitlement to service connection for a left ear hearing loss disability is granted. REMAND Service connection for an acquired psychiatric disorder, to include PTSD and depression The Veteran contends that he has PTSD and depression due to witnessing his friend commit suicide by jumping overboard while serving on the USS Forrestal in summer of 1988. See, e.g., the November 2010 Board hearing transcript, pgs. 3-4, 8. He also testified that he witnessed a man injure himself and later die from getting his head stuck in a hatch on the USS Forrestal in 1989. Id. at pgs. 4-5. In the September 2011 remand, the Board instructed the RO or the AMC to submit the Veteran's alleged stressors to the United States Army and Joint Services Records Research Center (JSRRC) [formerly the United States Armed Service Center for Unit Records Research (CURR)] for verification. The Board further instructed that if a stressor claimed by the Veteran was verified, a VA examination should be scheduled in order to ascertain whether the Veteran's claimed PTSD and depression were a result of a verified in-service stressor. The Veteran's stressor statements were submitted to JSRRC, and in August 2012, JSRRC responded that the 1988 command history and deck logs for the USS Forrestal did not document any suicide incidents or men overboard. However, the deck logs for the USS Forrestal revealed that on November 8, 1989, a medical emergency was reported when an airman was found unconscious and bleeding from the head after he fell down a magazine trunk. The deck logs further revealed that on November 12, 1989, the airman was pronounced dead. Although the Veteran's claimed stressor of witnessing a friend commit suicide has not been verified, JSRRC was able to verify that a man injured himself and later died on the USS Forrestal in 1989. This report tends to support the Veteran's account that he witnessed a man sustain an injury after striking his head a hatch. A remand by the Board confers upon the veteran, 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. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As one of the Veteran's stressors has been verified, he should be afforded a VA examination to ascertain whether his claimed PTSD and depression are a result of his service, in accordance with the September 2011 remand instructions. Right Wrist On October 14, 2006, the Veteran was given light duty status from his reserve duty due to right knee patella tendonitis. A reserve treatment record from November 5, 2006 reflects that the Veteran had diagnoses of patellofemoral syndrome and tendonitis patellar of the right knee. A reserve periodic health assessment from November 2006 indicates that the Veteran experienced intermittent right knee pain. It is not clear if the Veteran was on ACDUTRA or INACDUTRA at the times he was treated for right knee pain while in the reserves. On remand, the RO or the AMC should verify if the Veteran was on ACDUTRA or INACDUTRA on October 14, 2006, and/or on November 5, 2006. The Board notes that in September 2012, the Veteran was afforded a VA examination. The examiner indicated that the Veteran had a diagnosis of knee sprain. After examining the Veteran and reviewing the claims file, the examiner stated "[r]egarding the medical opinion for the right knee condition that is documented on 11/5/06, he can be awarded service connection for that condition." In this matter, the September 2012 VA examination report is unclear. Although patellofemoral syndrome and tendonitis patellar of the right knee were diagnosed on November 5, 2006, the September 2012 VA examiner did not indicate that he found either of those disorders at the September 2012 examination. Indeed, the only diagnosis mentioned in the September 2012 VA examination report is "knee strain." As such, it is unclear what "condition" the examiner was referring to. Further, the examiner gave no rationale for his given opinion. On remand the Veteran should be afforded a new VA compensation and pension examination in connection with his claim for service connection for a right knee disorder. 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) (2011). Expedited handling is requested.) 1. Contact the appropriate service department and verify the exact dates of the Veteran's reserve service dates, and also confirm the all dates of ACDUTRA/INACDUTRA therein. 2. PTSD and depression. The RO/AMC should make arrangements for the Veteran to be examined by an appropriate specialist for the purpose of addressing the existence and etiology of the Veteran's claimed psychiatric disorders. The Veteran's VA claims folder must be made available to the examiner. The examiner should either diagnose PTSD or depression or rule it out as a diagnosis. If the examiner determines that the Veteran has PTSD and/or depression, he/she should state whether it is at least as likely as not (e.g., a 50/50 probability) that the Veteran's PTSD and/or depression is a result of his verified in-service stressor of witnessing a man injure his head and later dying while aboard the USS Forrestal in 1989. The VA examiner should also determine whether the Veteran suffers from any other psychiatric disorders and if so whether they are related to his military service. The report of the examination should be associated with the Veteran's VA claims folder. The examiner should indicate in his/her report that the claims file was reviewed. A rationale for all opinions expressed should be provided. A report should be prepared and associated with the Veteran's VA claims folder. In providing the requested opinion, the examiner should be advised that 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 a certain conclusion as it is to find against it. The examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Right Knee. The RO/AMC should schedule the Veteran for an examination to ascertain the nature and etiology of any joint disability in right knee. The entire claims file should be made available to and be reviewed by the examiner in conjunction with the examination, and the examiner should confirm that such records were available for review. The examiner must indicate: a. whether the Veteran currently has a disorder of the right knee; b. whether there is a 50 percent probability or greater that any found disorder is related to service; c. whether there is a is a 50 percent probability or greater that any of these disabilities had their onset during a period of ACDUTRA (as verified by the RO) or are otherwise etiologically related to a period of ACDUTRA; d. whether of the disabilities were aggravated beyond the natural progression of the disabilities during a period of active service or ACDUTRA; or e. whether the disabilities are due to an injury during a period of INACDUTRA. In providing the requested opinion, the examiner should be advised that 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 a certain conclusion as it is to find against it. The examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate. Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. When the development requested has been completed, the case should be reviewed by the RO 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 (SSOC) 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 Supp. 2011). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs