Citation Nr: 21001842 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 13-13 226 DATE: January 12, 2021 REMANDED The issue of service connection for tinnitus is remanded. The issue of service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1976 to November 1980. He was a member of the Army Reserve from November 1980 to December 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board denied service connection for tinnitus and a right knee disability. The Veteran appealed the June 2019 Board denial to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Order, the Court granted a Joint Motion for Partial Remand (Joint Motion), vacating the June 2019 Board decision and remanding it for action consistent with the terms of the Joint Motion. Specifically, the parties to the Joint Motion found that the Board failed to provide an adequate statement of reasons or bases to support its finding that VA’s duty to assist had been satisfied. 1. The issue of service connection for tinnitus is remanded. The parties to the Joint Motion found that the Board erred when it relied on March 2010 and April 2012 VA opinions that found that the Veteran’s tinnitus was either not related to service or that the etiology was unknown in the absence of hearing loss. The parties determined that the VA opinions did not adequately address the likelihood that the Veteran’s tinnitus was related to service notwithstanding an absence of hearing loss or damage to hearing. As such, a remand is necessary to obtain a VA opinion to address the issue of service connection for tinnitus, to ensure compliance with the terms the July 2020 Joint Motion. 2. The issue of service connection for a right knee disability is remanded. The parties found that the Board erred when it relied on a July 2012 VA opinion that found that the Veteran’s right knee disability was not related to a 1978 in-service injury or to the wear and tear of physical training during “Reserve Duty” and that a January 1993 surgical record for a meniscal tear did not indicate that the injury was service related. The parties determined that the VA opinion did not adequately address the likelihood that the Veteran’s current right knee disability was the result of his 1978 in-service hyperextension injury or the “wear and tear” of physical training during active duty, rather than a subsequent 1993 injury. As such, a remand is necessary to obtain a VA opinion to address the claim of service connection for a right knee disability, to ensure compliance with the terms the July 2020 Joint Motion. Additionally, upon remand outstanding records should be obtained, as the Veteran, through his attorney, asserted that there were outstanding records relevant to his appeal. See Veteran’s statement (July 2020). Specifically, he stated that in-service clinical patient records from Elmendorf Hospital were not adequately requested, as such records require a separate NPRC request. The matters are REMANDED for the following action: 1. Obtain in-service clinical patient records from Elmendorf Hospital regarding the Veteran’s in-service right knee injury and treatment thereof. 2. Refer the claims file to an audiologist for an opinion as to the etiology of the Veteran’s tinnitus. The audiologist should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s tinnitus had its onset in service or is otherwise related to service, to include as due to in-service noise exposure. The audiologist must provide a rationale for the opinion. 3. Refer the claims file to a physician for an opinion as to the etiology of the Veteran’s right knee disability. The physician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right knee disability, had its onset in service or is otherwise related to service, to include as due to the 1978 in-service hyperextension injury or the “wear and tear” of physical training during active duty. The physician must provide a rationale for the opinion. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.