Citation Nr: 21066429 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-26 960 DATE: November 1, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total rating based on individual unemployability due to service connection disability (TDIU) is remanded. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. The Veteran reports injuring both knees and the low back during service. In a July 2017 statement, the Veteran reported injuring the back and right knee after falling while walking up a hill with his unit. However, the Veteran has also reported incurring injuries while in combat with enemy combatants. In a July 2017 statement, the Veteran wrote that, in December 1970, he and his unit were set upon by enemy projectile fire. The Veteran stated that he ran and dove for cover, injuring the left knee and back. The Veteran indicated that he subsequently experienced further incidents in service involving enemy fire that aggravated the back and knee problems. For Veterans who engaged in combat with the enemy, lay evidence alone can establish incurrence of an injury during service, if consistent with the circumstances, conditions, or hardships of that service, even if there is no official record. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Those provisions do not establish service connection for a combat Veteran, but rather aid combat Veterans in relaxing the evidentiary requirements for determining what happened in service. 38 U.S.C. § 1154(b); Clyburn v. West, 12 Vet. App. 296 (1999). When a Veteran has not received a medal indicative of combat, the Board must determine on a case by case basis whether the Veteran participated in combat with the enemy. VAOPGCPREC 12-99 (combat determination should be made on a case-by-case basis where there is no medal specifically indicating combat service). Evidence submitted to support a claim that a Veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353 (1998). Experiencing incoming enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). While the service separation form and service personnel records indicate that the Veteran served in Vietnam, they do not indicate that he has received a medal indicative of combat service. The Veteran's military occupational specialty was scout dog handler, which is not generally indicative of combat service. In an April 2017 VA psychiatric examination report, a VA examiner indicated that the Veteran had moderate combat service, based on the results of a "combat exposure scale" test. The Board notes that such tests, based on the Veteran's reports of combat without reference to records or other sources, do not sufficiently verify combat service under VA regulations. Therefore, remand is necessary for further development regarding the Veteran's contention of having experienced combat situations. The Veteran should be allowed the opportunity to provide information regarding the dates, locations, and units of assignment to verify his having engaged in combat with the enemy. The Agency of Original Jurisdiction should make a decision regarding whether it is at least as likely as not that the Veteran engaged in combat with the enemy during service and whether any combat presumptions apply. The Veteran has not been provided a VA examination to determine the nature and etiology of claimed back and knee disabilities. In October 2018 VA knee and lower leg conditions, and back (thoracolumbar spine) conditions disability benefits questionnaires, submitted by the Veteran, a private examiner opined that the Veteran's low back and knee disabilities were at least as likely as not related to incidents in service, to include both the non-combat experience of falling down a hill and the reported combat experiences. The Veteran's reported combat experiences have not been sufficiently verified. In explaining how the Veteran's claimed disabilities were at least as likely as not related to service, the examiner did not refer to the service medical records, to include the April 1971 service separation examination report. The Board finds that remand is necessary to schedule the Veteran for a VA examination to determine the nature and etiology of the claimed disabilities. 4. Entitlement to service connection for bilateral hearing loss is remanded. 5. Entitlement to service connection for tinnitus is remanded. The Veteran contends that he experienced acoustic trauma during service, resulting in hearing loss and tinnitus. In an August 2017 VA audiology examination report, a VA examiner opined that the Veteran's bilateral hearing loss was not at least as likely as not related to service because the service medical records, to particularly include the April 1971 service separation examination report, indicated that the Veteran did not have hearing loss at the time of separation from service. The Board notes that the April 1971 service examination did not include the results of any hearing tests other than a "whisper test." The results of a whispered voice test do not exclude the possibility of hearing damage in the higher frequency ranges. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). As the examiner did not address the potential inadequacies of the April 1971 "whisper test" in the required opinion, remand is necessary to schedule an additional VA examination to determine the etiology of the claimed bilateral hearing loss disability and tinnitus. Because the issue of service connection for tinnitus is inextricably intertwined with that of the claim for service connection for bilateral hearing loss, the issue of service connection for tinnitus must be remanded. 6. Entitlement to an initial rating in excess of 50 percent for PTSD is remanded. The Veteran has asserted that psychiatric disability symptomatology has increased in severity since the Veteran was most recently examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of PTSD. 7. Entitlement to TDIU is remanded. The claim for TDIU is inextricably intertwined with the other claims being remanded and must also be remanded. Regarding all disabilities, the VA treatment records contain notations indicating that a VA employee scanned medical records into a VA hospital's imaging system, but do not contain any copies of the scanned records. Any treatment records scanned into a VA hospital's imaging system are within VA's constructive possession and are considered potentially relevant to the issues on appeal. Remand is required to allow VA to obtain those records. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. Specifically, obtain the most recent VA treatment records not included in the record of evidence and the records noted as having been scanned into the Vista imaging system by VA Medical Center personnel, as noted in the VA treatment records in evidence, dated July 29, 2017; May 10, 2017; March 9, 2017; August 4, 2016; July 11, 2016; August 27, 2015; November 26, 2014; May 14, 2014; and August 22, 2012. 2. Provide the Veteran with information regarding the verification of in-service combat incidents, asking the Veteran to supply information regarding the dates, locations, and units of assignment for each incident during which he engaged in combat with the enemy. 3. After waiting a reasonable amount of time for the Veteran's response, attempt to verify the Veteran's reported combat incidents. All attempts to verify the reported combat incidents should be documented. If the reported incidents are considered to be verified, the Agency of Original Jurisdiction should note that for the record. 4. Then, schedule the Veteran for a VA audiology examination to determine the nature and etiology of any bilateral hearing loss and tinnitus disabilities. The examiner should review the entire record, including the service medical records, the post-service medical records, and the lay evidence of record. The examiner should note that, on the Veteran's April 1971 service separation examination report, a service examiner wrote that a "whisper test" indicated that the Veteran had normal hearing. The examiner should comment on the usage of the whisper test in evaluating hearing disability symptomatology. After a review of the records, an interview with the Veteran, and an examination, the examiner must provide the following: (a.) Opine whether it is at least as likely as not (50 percent or greater probability) that a bilateral hearing loss disability is related to service or any incident of service. The examiner should consider the Veteran's lay statements regarding symptoms of hearing loss during and since service. The basis for a negative opinion cannot be that hearing was normal at separation. (b.) Opine whether it is at least as likely as not (50 percent or greater probability) that a bilateral hearing loss disability (1) began during active service, (2) manifested within one year after the Veteran's April 1971 separation from service, or (3) was noted during service with continuity of the same symptomatology since service. (c.) Opine whether it is at least as likely as not (50 percent or greater probability) that tinnitus is related to service or any incident of service. The examiner should consider the Veteran's lay statements regarding symptoms of tinnitus during and since service. (d.) Opine whether it is at least as likely as not (50 percent or greater probability) that tinnitus (1) began during active service, (2) manifested within one year after the Veteran's April 1971 separation from service, or (3) was noted during service with continuity of the same symptomatology since service. 5. Schedule the Veteran for a VA orthopedic examination with an orthopedist, to determine the etiology of any low back and knee disabilities. The examiner must review the record and should note that review in the report. In reviewing the record, the examiner should note the service medical records; the post-service treatment records, to include the October 2018 VA knee and lower leg conditions, and back (thoracolumbar spine) conditions disability benefits questionnaires, in which a private examiner stated that the Veteran's injuries were at least as likely as not related to service; and the Veteran's lay statements. The examiner should note whether the Agency of Original Jurisdiction has determined that the Veteran's claimed combat experiences had been verified. If so, the examiner should be aware that the Veteran's reports of combat injuries should be accepted as accurate when they are consistent with the circumstances, conditions, or hardships of his reported service. A complete rationale should be provided for all opinions and conclusions expressed. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. After an examination, an interview with the Veteran, and a review of the claims file, the examiner is asked to also provide the following: (a.) Diagnose all low back, right knee, and left knee disabilities. (b.) Opine whether it is at least as likely as not (50 percent or greater probability) that any low back disability is related to service or any incident of service. (c.) If an arthritic disability of the low back is diagnosed, opine whether it is at least as likely as not (50 percent or greater probability) that low back arthritis (1) began during active service, (2) manifested within one year after the Veteran's April 1971 separation from service, or (3) was noted during service with continuity of the same symptomatology since service. (d.) Opine whether it is at least as likely as not (50 percent or greater probability) that any right knee disability is related to service or any incident of service. (e.) If an arthritic disability of the right knee is diagnosed, opine whether it is at least as likely as not (50 percent or greater probability) that right knee arthritis (1) began during active service, (2) manifested within one year after the Veteran's April 1971 separation from service, or (3) was noted during service with continuity of the same symptomatology since service. (f.) Opine whether it is at least as likely as not (50 percent or greater probability) that any left knee disability is related to service or any incident of service. (g.) If an arthritic disability of the left knee is diagnosed, opine whether it is at least as likely as not (50 percent or greater probability) that left knee arthritis (1) began during active service, (2) manifested within one year after the Veteran's April 1971 separation from service, or (3) was noted during service with continuity of the same symptomatology since service 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of PTSD. The examiner should review the claims file, to include the April 2017 VA psychiatric examination report and the February 2019 PTSD disability questionnaire and psychosocial assessment submitted by the Veteran. The examiner should provide a full description of the disability and report all signs and symptoms necessary for rating the disability under the rating criteria. The examiner should attempt to elicit information regarding the severity, frequency, and duration of symptoms. The examiner should opine as to the levels of social and occupational impairment caused by PTSD and the symptoms, and their frequency and duration, resulting in those levels of impairment. If any psychiatric disabilities other than PTSD are diagnosed, the examiner should indicate if it is possible to differentiate the symptoms of the other disabilities from those related to the Veteran's PTSD. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure of follow a substantially gainful occupation due to PTSD. If the Veteran is felt capable of work despite the service-connected PTSD, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.M. Gillett 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.