Citation Nr: 18152570 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-53 085 DATE: November 23, 2018 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran had active service from April 1972 to March 1975 and from February 1976 to January 1984. VA treatment records to August 2014 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from August 2014 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. The service treatment records (STRs) show that the Veteran complained of left knee pain in November 1981 and reported a history of knee problems. The diagnosis was a left knee strain. An x-ray was negative for a fracture. The Veteran wrote in September 2014 that in August 1973 an Army physician told him that both knees were badly sprained and that there was minor ligament damage. He had had trouble with the knees since then. In January 1974 he reinjured his right knee after his right patella dislocated during a fall. The original injury occurred during a vehicle rollover. The Veteran wrote in October 2016 that he saw other soldiers get medically discharged after knee surgery. Therefore, he stopped complaining about his knees during service and lived with the pain. When he squatted, there was popping in his knees that sounded like sticks breaking. The Veteran has reported bilateral knee pain since service, and the Board finds him credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Furthermore, the regional office determined in August 2014 that the STRs from the first period of service are not available. In the absence of the presumed destroyed service medical records, the Board’s obligation to explain its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, is heightened. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In addition, the Veteran is competent to report that he was told by a physician that he had ligament damage. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although the post-service treatment records do not show a diagnosis related to the knees, they do show complaints of pain. The term “disability” refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment, and therefore pain can be a disability for the purposes of VA benefits. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (2018). In addition, the record shows there was a diagnosis of ligament damage during service and pain since service. Therefore, the Veteran must be scheduled for a VA examination to determine whether the knee pain causes functional impairment, and its relationship to military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for bilateral hearing loss is remanded. 4. Entitlement to service connection for tinnitus is remanded. The Veteran had a VA examination in June 2018. The examiner opined that the Veteran’s hearing loss was not at least as likely as not related to service because audiograms during service, including discharge, were normal. The examiner also opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure because there were no complaints of tinnitus during service and hearing was within normal limits at the discharge examination. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Furthermore, even if disabling hearing loss is not demonstrated at separation, service connection may be established for a current hearing disability by evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Therefore, the Veteran must be scheduled for another examination before the claim can be decided on the merits. The matters are REMANDED for the following action: 1. Obtain VA treatment records from August 2014 to the present. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature, onset and likely etiology of the left and right knee disabilities. The claims file must be made available to the examiner for review prior to the examination. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left and right knee disabilities were incurred in service or within a year of service or are otherwise related to service. The examiner is 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 Veteran’s recollection of being diagnosed with ligament damage during service and reports of having knee pain since service should be presumed credible. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. 3. Thereafter, schedule the Veteran for an appropriate VA examination to determine the current nature, onset and likely etiology of his hearing loss and tinnitus. The claims file must be made available to the examiner for review prior to the examination. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss and tinnitus were incurred in service or within a year of service or are otherwise related to service. The examiner is 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 must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. The examiner is also asked to comment on whether the pattern of the Veteran’s hearing loss is consistent with noise induced hearing loss. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott Shoreman, Counsel