Citation Nr: 1338481 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 12-08 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. McCabe, Associate Counsel INTRODUCTION The Veteran served on active duty service from May 14, 1983 to July 1, 1987 and from September 8, 2005 to October 8, 2006. He had additional service in the U.S. Army Reserves. This appeal to the Board of Veterans' Appeals (Board) is from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in relevant part, denied service connection for a bilateral knee condition and tinnitus. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Unfortunately a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure a complete record upon which to make an informed decision so that the claim is afforded every possible consideration. The Veteran contends that he incurred a bilateral knee disorder as a result of service, which specifically manifested during a period of training with the U.S. Army Reserves. He additionally contends that he incurred tinnitus as a result of noise exposure during his active duty service. Although the Veteran states his bilateral knee disorder relates to his service in the U.S. Army Reserves, there has been no verification of periods of active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA). This is particularly important in light of the Veteran's assertion in his July 2010 claim that his current bilateral knee disorder is related to knee pain that he first experienced during a period of training with the Army Reserves. Furthermore, records submitted by the Veteran reflect that he was placed on a Permanent Limited Profile in April 1998 for a bilateral knee disorder and that he saw a private physician in June 1997 and July 1998 for bilateral knee pain that "began . . . during his reserve duty exercise." Therefore, verification of all periods of ACDUTRA or INACDUTRA should be accomplished on remand. Remand is also required to obtain additional records relating to the Veteran's Reserve service. The Veteran stated in his July 2010 claim that he served with the 95th Division (IET) in Oklahoma City, Oklahoma from July 1987 to September 2005 and from October 2006 to present. Additionally, the Veteran reported receiving treatment for his knees at a clinic at Fort Sill, Oklahoma in 1997 or 1998. Although the Veteran stated in a July 2010 letter that he was unable to obtain his Reserve records because they were "sent off to be scanned (permed)," it is not clear that any attempt has been made by the RO to obtain his Reserve service treatment or personnel records. The RO, then, should take appropriate action to obtain the Veteran's complete records for his Reserve service. Additionally, in January 2011, the RO/AMC issued a formal finding of unavailability of the Veteran's active duty service treatment records (STRs). However, the August 2010 RMC records request only included records from September 8, 2005 to October 8, 2006. As the case must be remanded, and because the Veteran's STRs could contain information pertinent to the issues on appeal, the RO/AMC should make an additional request for the Veteran's complete STRs, to include the Veteran's initial period of active service beginning in 1983. With regard to the Veteran's claim for service connection for tinnitus, a new VA audiological opinion is warranted. A VA examination was performed in September 2010 and an addendum opinion was provided in October 2010. The examiner diagnosed constant tinnitus, bilaterally. Noting the absence of evidence of auditory system injuries, significant threshold shifts, or hearing loss, the examiner opined that the etiology of the Veteran's tinnitus was unknown and could not be determined based on the available evidence without resorting to mere speculation. An examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation may be relied upon as long as such a conclusion is well-supported by the facts and data of the case. Jones v. Shinseki, 23 Vet. App. 382 (2010). In this case the examiner's opinion was based on an absence of documentation regarding the Veteran's reported hearing loss and tinnitus as well as an absence of evidence of in-service acoustic trauma. In addition, the examiner failed to comment on the Veteran's report of in-service exposure to gunfire, artillery, aircraft engines, and machinery noise as a field artillery officer. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the absence of evidence in the service medical records to provide a negative opinion). The examination report and addendum are not sufficient because the examiner relied upon the absence of evidence of hearing loss or acoustic injury and failed to address evidence of in-service acoustic trauma. Because VA undertook to provide a VA examination to evaluate the Veteran's claimed tinnitus, the Board must ensure that such an examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). Accordingly, remand for a more complete medical opinion is warranted. See 38 C.F.R. § 4.2 (2013) (stating that if an examination report does not contain sufficient detail, it is incumbent on the rating board to return the report as inadequate for evaluation purposes); see also Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (stating that VA has discretion to schedule a Veteran for a medical examination where it deems an examination necessary to make a determination on the Veteran's claim). In rendering the requested opinion, the examiner should consider the Veteran's reported history of in-service noise exposure as a field artillery officer during both of his periods of active duty and note that the Veteran's in-service hazardous noise exposure has been established based on the Veteran's military occupational specialty (MOS) as a field artillery officer, which has been determined by the Department of Defense to involve a high probability of hazardous noise exposure. See Duty MOS Noise Exposure Listing; see also VA Fast Letter 10-35 (September 2, 2010). Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and obtain the provider name, address, and approximate date of treatment for any additional treatment records that he would like VA to obtain. Obtain all records adequately identified by the Veteran, and for which the Veteran has signed the appropriate releases, and associate them with the claims folder. 2. Undertake appropriate action to attempt to verify all of the Veteran's periods of ACDUTRA and INACDUTRA with the U.S. Army Reserves. 3. Take appropriate action to obtain the Veteran's complete records for his U.S. Army Reserve service, to include making a request to the National Personnel Records Center (NPRC), the Veteran's Reserve Unit, Fort Sill, or any other appropriate entity. 4. Make a request for the Veteran's service treatment records, to include all periods of his active service (May 14, 1983 to July 1, 1987 and September 8, 2005 to October 8, 2006), to the NPRC via the Personnel Information Exchange System (PIES) using the appropriate request code(s), and, if necessary, any other appropriate records repository. All records and/or responses received should be associated with the claims file. The non-existence or unavailability of the information and/or records must be verified by each Federal department or agency from which they are sought. Such verification should be documented for the record and the Veteran should be provided notice of that fact. 5. After the foregoing development has been completed and all available records have been associated with the claims file, arrange for an addendum opinion to the audiological examination report from the same examiner who conducted the October 2010 examination. If the same examiner is not available, a different examiner should be asked to review the claims folder and provide the requested opinion. Based on the review of this REMAND and the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not (i.e. a 50 percent or higher probability) that the Veteran's tinnitus was due to active duty service (May 14, 1983 to July 1, 1987 and September 8, 2005 to October 8, 2006) and/or any period of ACDUTRA. The examiner must note in the examination report that the evidence in the claims file has been reviewed. In providing this opinion, the examiner should note the Veteran's reported acoustic trauma in service, and also that in-service hazardous noise exposure is established by virtue of the Veteran's MOS as a field artillery officer. The examiner must provide a complete explanation for the opinion reached. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 6. Next, review the VA audiological examination report to ensure that the opinion provided is adequate. The case should be returned to the examiner if all questions posed in this REMAND are not answered. 7. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, the AOJ should readjudicate the claims on the merits. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. He is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2013). 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. 2013). ____________________________________________ P. M. DILORENZO 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) (2013).