Citation Nr: 18142610 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-28 854 DATE: October 16, 2018 REMANDED Entitlement to service connection for bilateral knee osteoarthritis is remanded. Entitlement to service connection for arthritis of the lumbosacral spine, to include as secondary to bilateral knee osteoarthritis, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1977 to March 1981. 1. Entitlement to service connection for bilateral knee osteoarthritis and arthritis of the lumbosacral spine is remanded. The Veteran seeks service connection for bilateral knee osteoarthritis and arthritis of the lumbosacral spine, which he attributes to the parachute jumps he completed in service. Alternatively, he also asserts that his lumbosacral spine disability is related to his knees. In December 2014, the Veteran underwent a VA examination to determine whether his bilateral knee and lumbosacral spine disabilities were related to his service. The examiner opined that the Veteran’s claimed disabilities were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He explained that there was no evidence of any connection and there was no continuum of care from service until now. In providing this opinion, the Board notes that the examiner failed to specifically discuss the impact and consequences, if any, that an individual may be expected to experience to his back and knees after having completed multiple parachute jumps in service. Furthermore, with respect to the knees, the examiner was asked only to consider whether they might be related to Veteran’s in-service parachute jumps. However, his service treatment records also show that he was treated on several occasions for right and left leg/knee complaints in service, which was not addressed by the examiner. Additionally, with respect to the examiner’s statement that there was no continuum of care from service until present, the Veteran subsequently clarified that, although he did not seek VA medical treatment, he took over-the-counter pain medication for many years. Accordingly, the Board finds that remand is warranted for a new VA examination and medical opinion. Regarding the lumbosacral spine disability, as the Veteran also now asserts that it may be related to his knees, if it is established that any of his claimed knee disabilities are related to his service, the new VA examination and medical opinion should also address secondary service connection. 2. Entitlement to service connection for bilateral hearing loss is remanded. In January 2015, the Veteran was afforded a VA examination to assess the etiology of his bilateral hearing loss. The examiner diagnosed bilateral sensorineural hearing loss and opined that the Veteran’s bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service or his military occupational specialty (MOS) of parachute rigger. The examiner based this opinion on the lack of evidence in the claims file and the lack of proximity between the dates of service and the date of the examination and onset of hearing loss (2011 or 2012). The examiner also explained that there was not a permanent positive threshold shift greater than normal measurement variability. The January 2015 VA examiner, however, based his opinion on the inaccurate factual premise that the Veteran’s hearing loss began in 2011 or 2012. In fact, at a November 2012 VA audiology consultation the Veteran reported that his hearing loss began many years earlier. The Board acknowledges that the Veteran is competent to report his hearing loss symptoms and when those symptoms began. See Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the Board finds that the examiner’s rationale was improperly based on the absence of treatment records during and after service. The Board emphasizes that an opinion based on the absence of documentation in the record is inadequate if it fails to take into account the Veteran’s reports of symptoms and history. See Dalton v. Peake, 21 Vet. App. 23 (2007). In that regard, the examiner stated that there was not a permanent positive threshold shift in service and there was a lack of evidence in the claims file. The Board notes, however, there is no service separation examination of record. Accordingly, in light of this absence of evidence, it appears that the examiner failed to adequately consider the Veteran’s reports of noise exposure from aircraft, weapons, and artillery during service. Additionally, although the examiner stated that there was a “lack of evidence in the [claims file,]” the Veteran reported that his hearing loss began many years prior to 2012. Accordingly, the Board finds that remand is warranted for a new VA examination and opinion consistent with the directives herein. The matters are REMANDED for the following actions: 1. Contact the Veteran and request that he identify any outstanding records of pertinent medical treatment from VA or private health care providers. With the Veteran’s assistance, if needed, obtain copies of any pertinent records and add them to the claims file 2. After the above records request has been completed to the extent possible, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s bilateral knee and lumbosacral spine disabilities. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner should: a) Provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s left and/or right knee disability had its onset in or is otherwise related to his active duty service. In addressing this question, the examiner should discuss the impact and consequences, if any, that an individual may be expected to experience to his knees after having completed multiple parachute jumps in service. The examiner should also consider and discuss the Veteran’s in-service complaints and treatment for the right and left leg/knee. b) Provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s lumbosacral spine disability had its onset in or is otherwise related to his active duty service. In addressing this question, the examiner should discuss the impact and consequences, if any, that an individual may be expected to experience to his back after having completed multiple parachute jumps in service. c) If, and only if, the Veteran’s left and/or right knee disability is determined to be etiologically related to his service, provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s lumbosacral spine disability was caused OR aggravated by his left and/or right knee disability. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the above records request has been completed, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s bilateral hearing loss. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s bilateral hearing loss had its onset in, or is otherwise related to, his active duty service, to include his noise exposure from his MOS of parachute rigger. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel