Citation Nr: 1337092 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 07-17 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a right knee condition, claimed as degenerative joint disease. 4. Entitlement to service connection for a left knee condition, claimed as degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active service from September 1967 to April 1974, January 1991 to May 1991, and from January 2003 to December 2004. His records indicate that he also served in the Oklahoma National Guard through 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran participated in a video conference hearing with the undersigned Veterans Law Judge in August 2008. A transcript of that proceeding has been associated with the Veteran's claims file. In prior remands, the Board remanded for further development. The case has been returned to the Board for adjudication. In the October 2011 remand, the Board referred the issues of service connection for a spine disability and a shoulder disability. The issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are rereferred to the AOJ for appropriate action. The Board has reviewed the Veteran's Virtual VA file and notes there are no additional records contained therein. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for bilateral hearing loss disability, tinnitus, and a bilateral knee disability, to include degenerative joint disease. After a careful review of the evidence of record, the Board finds that additional development is needed prior to deciding the claims. A print out of a September 2012 email from the Appeals Management Center states that the Veteran's electronic folder on Virtual VA could not be accessed. It was noted that the Veteran had prior VA Medical Center visits. A review of the claims file reveals that the most recent VA outpatient records are the February and December 2009 VA examinations. There are no VA outpatient treatment records which have been associated with the Veteran's paper claim file. A review of the Veteran's Virtual VA file reveals there are no VA outpatient treatment records associated with the same. Given the email noted above, it appears that there are outstanding VA outpatient treatment records which need to be obtained and associated with the claims file. In an August 2009 remand, the Board noted that the Veteran's service treatment records appeared to be incomplete. The Board requested that the National Personnel Records Center (NPRC) be contacted and/or any other appropriate agency and request copies of the Veteran's complete service treatment records from his periods of active service from January 1991 to May 1991 and from January 2003 to December 2004. A February 2010 letter from the NPRC, in response to a request for missing service treatment records, notes that all VA requests for military personnel and medical information/records should be initiated through the Personnel Information Exchange System (PIES). A review of the claims file does not show that any PIES request for the outstanding service treatment records was made after the February 2010 letter. In the case of Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims ("the Court") held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. On remand, the RO/AMC should make a PIES request for any outstanding service treatment records. In a letter received in November 2012, the Veteran stated that he had served as a Military Technician with dual status, for 20 years with the Oklahoma National Guard. He submitted regulation which shows that, that this is essentially a position in which he maintained membership in the National Guard and drilled accordingly, while having an essentially full time job as a Federal civilian employee. The Veteran has now retired from the National Guard. However, nothing in the record confirms the periods of time, during the 20 years of service, that the Veteran served on active duty, active duty for training or inactive duty for training, aside from the three periods for which DD-214's have been obtained. Significantly, the Veteran's most recent DD-214 specifically states that the dates of service noted do not include any other periods of time during which the Veteran served for weekend drills or annual training. The Veteran has argued that his entire 20 years of service as a Military Technician with dual status should be considered military service. It is therefore imperative that all periods of military service during the 20 years with the National Guard, be confirmed. In regards to the claim for service connection for a bilateral knee disability, the most recent VA medical opinion of record of December 2009, states that it is less likely than not that the Veteran had an increase or aggravation of his knee pain during active service from 2003 to 2004. The rationale provided was that there was a lack of documentation, lack of history to demonstrate an exacerbation or worsening of knee pain. The Veteran has alleged a worsening of his knee symptoms during his most recent period of active duty service. With regards to the left knee, the Board notes that the United States Court of Appeals for the Federal Circuit held in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) that a veteran's report of in-service symptoms is not deemed less than credible solely because there is no objective medical evidence corroborating those symptoms at the time. In other words, the fact that the Veteran's service treatment records do not show complaints of or treatment for these disabilities is an insufficient rationale for a negative nexus as explained in Buchanan. Accordingly, the opinion regarding the left knee is inadequate. In regards to the right knee, the medical evidence of record indicates that the Veteran had right knee surgery in the mid to late 1990s and complained of bilateral knee pain during his 2003 to 2004 period of active service. Accordingly, the opinion is based on an inconsistent factual predicate. Therefore, a new opinion is needed. In regards to the claim for service connection for tinnitus, the most recent VA medical opinion of record dated in December 2009 stated that tinnitus was not caused by the Veteran's active duty service as it had started prior to the most recent period of active service. However, an opinion as to whether the tinnitus was aggravated by service was not provided. A new opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he indicate the date of his retirement from the National Guard and submit any records he has to verify his complete period of National Guard service for his 20 years in the National Guard as a Military Technician. Also, request the Veteran submit complete copies of employment records documenting his period of civilian employment as a Federal Military Technician. Thereafter, the RO/AMC should contact the appropriate records depository and ask for verification of all the exact dates of the periods of active duty, active duty for training and inactive duty for training for the Veteran's entire National Guard career. Document all attempts to obtain this information, including negative responses 2. The RO/AMC should contact the Personnel Information Exchange System (PIES) and request copies of the Veteran's complete service treatment records from his periods of active service from January 1991 to May 1991 and from January 2003 to December 2004. All attempts to obtain the missing records should be clearly documented in the claims file. If attempts to obtain these records are unsuccessful, this should be documented in the claims file and the Veteran notified accordingly. 3. The RO/AMC should obtain all outstanding VA outpatient treatment records for the treatment of the Veteran's hearing loss, tinnitus, and bilateral knees. All efforts to obtain the records should be clearly documented in the claims file. If there are no outstanding VA outpatient treatment records to be obtained, it should be clearly noted in the claims file. Any records obtained should be associated with the paper file or the Virtual VA file. 4. After, the above development has been completed, the Veteran should be afforded a VA orthopedic examination for the purpose of ascertaining the nature and extent of any left knee or right knee condition that may be present, and obtaining an opinion as to whether these conditions are etiologically related to his active service. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After examining the Veteran and the claims file, the examiner should be asked to identify the Veteran's current diagnosis, as well as an opinion as to whether "it is at least as likely as not" that the Veteran's right and left knee conditions are etiologically related to his active service. The examiner should specifically note whether the Veteran's right and left knee conditions increased in severity during his period of active duty from January 2003 to December 2004 and, if so, whether this increase in severity was consistent with the natural progression of the disease or whether the increase represented a permanent worsening or "aggravation" of the disease beyond its natural progression. The examiner should note that the Veteran's right and left knee conditions were first documented in the mid-1990s. In providing the requested opinions, 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 the conclusion is so evenly divided that it is medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale should be provided for every opinion expressed. 5. After the development in 1 and 2 above has been completed, the Veteran should be afforded a VA audiological examination for the purpose of ascertaining the nature and extent of any tinnitus present and obtaining an opinion as to whether is etiologically related to his active service. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After examining the Veteran and the claims file, the examiner should be asked to provide an opinion as to whether "it is at least as likely as not" that the Veteran's tinnitus is etiologically related to his active service. The examiner should specifically note whether the Veteran's tinnitus increased in severity during his period of active duty from January 2003 to December 2004 and, if so, whether the increase in severity was consistent with the natural progression of the disease or whether the increase represented a permanent worsening or "aggravation" of the disease beyond its natural progression. A rationale should be provided for every opinion expressed. 6. After undertaking any other development deemed appropriate, the AOJ should consider the issues on appeal in light of all information or evidence received. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an 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. 2012). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).