Citation Nr: 21069375 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-30 891 DATE: November 18, 2021 REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Preliminary Matters The Veteran served in the Army National Guard from 1991 through 1997. This service included a period of uncharacterized active duty service from April 3, 1991 to August 20, 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in his July 2016 substantive appeal (VA Form 9), the Veteran requested a hearing before the Board. Accordingly, the Veteran was initially scheduled for a Board hearing in June 2020. However, due to the COVID-19 pandemic, the hearing was postponed several times. The Veteran was rescheduled for a Board hearing in September 2021, for which he did not appear. To date, the Veteran has not requested that his hearing be rescheduled or provided good cause for his failure to show. Therefore, the Board finds the Veteran's request for a hearing to be withdrawn, and the Board will proceed with its review on the present record. See 38 C.F.R. § 20.704(d). REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for a bilateral knee disability is remanded. See Argument in Section 5 2. Entitlement to service connection for bilateral pes planus is remanded. See Argument in Section 5 3. Entitlement to service connection for a back disability is remanded. See Argument in Section 5 4. Entitlement to service connection for bilateral hearing loss is remanded. See Argument in Section 5 5. Entitlement to service connection for tinnitus is remanded. As an initial matter, the Board notes that there are outstanding records. A review of the record indicates that the Veteran's service treatment records, as contained in his electronic claims folder, may not be complete. Specifically, it does not appear that the entrance and separation examination reports for the Veteran's period of active service have been associated with the claims file. Although it appears that the Agency of Original Jurisdiction (AOJ) made an attempt to obtain the Veteran's outstanding service treatment records, it is unclear to the Board as to whether such records do not exist or that any further efforts to obtain them would be futile. See April 2014 correspondence. The claims file does not contain a formal determination that such records do not exist or that further efforts to obtain such records would be futile, or any notification to the Veteran of such a finding, as required by governing regulation. See 38 C.F.R. § 3.159(c)(2), (e). Thus, on remand, an exhaustive search for the Veteran's missing service treatment records should be undertaken, and the Veteran should be notified of all unavailable records. Furthermore, the claims file does not contain a record of the Veteran's pertinent periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). On remand, the AOJ is directed to undertake all appropriate development to determine the Veteran's dates of ACDUTRA or INACDUTRA during the Veteran's periods of service as a reservist. The AOJ is further directed to confirm that all of the Veteran's military treatment records have been obtained from all appropriate periods of duty. All efforts to obtain these records should be documented in the claims file and the provisions of 38 C.F.R. § 3.159(e) must be followed. Additionally, the Board notes that no VA treatment records are of record. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the Board finds that the RO should obtain any outstanding VA treatment records and associate any such records with the Veteran's claims file. Furthermore, the record reflects that the Veteran has not been afforded a VA examination in connection with any of the claims. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Obtain all outstanding service personnel records and service treatment records, to include the Veteran's enlistment and separation examinations for his period of active service. All reasonable attempts to obtain such records should be made and documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This should be documented in the claims file. The Veteran must be notified in accordance with 38 C.F.R. § 3.159(e). 3. Undertake all appropriate efforts to determine the Veteran's dates of ACDUTRA and INACDUTRA during his periods of service as a reservist. All efforts to obtain this information should be documented in the claims file and the provisions of 38 C.F.R. § 3.159(e) must be followed. 4. After all outstanding records have been obtained, schedule the Veteran for examination(s) by an appropriate clinician to determine the nature and etiology of his claimed bilateral knee disability, bilateral pes planus, back disability, bilateral hearing loss, and tinnitus. The Veteran's claim file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran's claimed disabilities. For each claimed disability, the examiner must opine whether it is at least as likely as not that any diagnosed disability manifested during, or as a result of, active military service. The examiner should note that pain alone can serve as a functional impairment, and therefore, qualify as a disability. Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018). All lay statements describing the Veteran's symptoms, manifestations, and onset must be fully considered and discussed. The examiner may not merely dismiss the Veteran's statements due to lack of contemporaneous medical records. Notably, the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, Associate 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.