Citation Nr: 21072233 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-50 320A DATE: December 2, 2021 REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for lumbar spine degenerative arthritis and disc disease is remanded. Entitlement to service connection for left knee arthritis with history of meniscal tear is remanded. Entitlement to service connection for right knee arthritis with history of meniscal tear is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1978 to May 1982. He testified at a videoconference hearing before the undersigned in July 2021. A transcript is of record 1. Entitlement to service connection for hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. 3. Entitlement to service connection for lumbar spine degenerative arthritis and disc disease is remanded. 4. Entitlement to service connection for left knee arthritis with history of meniscal tear is remanded. 5. Entitlement to service connection for right knee arthritis with history of meniscal tear is remanded. The Board notes that additional VA treatment records were added to the Veteran's electronic claims file from April 2019 through April 2020 and contain evidence that was not previously part of the claims file. These records were not reviewed by the Agency of Original Jurisdiction (AOJ) at the time of the April 2017 Statement of the Case (SOC) and no subsequent Supplemental Statement of the Case (SSOC) has been issued. This evidence is pertinent to the issues on appeal, and a waiver of initial review has not been received. In October 2021 correspondence, the Veteran was notified of the additional evidence and given 45 days to respond. If no response was received within the 45-day period, the October 2021 correspondence indicated that the claim would be remanded to the AOJ for review. No response was received from the Veteran. Therefore, a remand is required to allow the AOJ to review the new evidence in relation to the Veteran's claims. 38 C.F.R. § 20.1304. See also 38 C.F.R. § 19.37(b). Additionally, the VA treatment records are VA-generated evidence not submitted by the Veteran or his representative and the automatic waiver provision of 38 U.S.C. § 7105(e) does not apply. Additionally, a review of the claims file indicates that there are no valid VA audiological examinations of record. During the July 2021 hearing, the Veteran requested a new audiological examination in order to obtain valid test results. While on remand, the Veteran should be afforded a new VA examination for his claimed hearing loss and tinnitus disabilities. Concerning the Veteran's knee disabilities, VA opinions obtained in 2016 and 2017 were against a finding that the Veteran's current knee disabilities were related to service. Both opinions relied, in part, on an observation that the Veteran sought no evaluations for his knees from the time he was discharged to 2015. However, the Veteran has submitted surgical records from Dr. Tracy, for his knees from dated as early as 2011. On remand, the Veteran should be provided an opportunity to submit any additional private treatment records that have not been associated with the file, and the AOJ should obtain another medical opinion addressing the etiology of his knee disabilities. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment and evaluation records. All records received should be associated with the claims file. 2. Send the Veteran a letter requesting that he submit, or authorize VA to obtain on his behalf, any records of private care for his claimed disabilities, to include specifically for his knees from Dr. Tracy. The Veteran should be informed that only surgical reports from Dr. Tracy are on file, and any records of private treatment leading up to the surgeries, or after the surgeries is not of record. Take all appropriate steps to obtain identified records. 3. Schedule the Veteran for an audiological examination by an appropriate clinician to determine the nature and etiology of his claimed hearing loss and tinnitus conditions. All indicated tests should be conducted, and the examiner should take a history from the Veteran as to the progression of his hearing loss and tinnitus disabilities. After review of the record, interview and examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (approximately 50 percent or greater probability) that the Veteran's hearing loss disability had onset in, or is otherwise related to his active-duty service? (b.) Is it at least as likely as not (approximately 50 percent or greater probability) that the Veteran's tinnitus had onset in, or is otherwise related to his active-duty service? All opinions should be supported by a medical explanation or rationale. 4. Schedule the Veteran for examinations to assess the nature and etiology of his knee disabilities. The claims file should be sent to, and reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his knee symptoms. Upon review of the record, and examination of the Veteran, the examiner should respond to the following: Is it at least as likely as not (approximately 50 percent or greater probability) that the Veteran's knee disabilities had onset in, or are otherwise related to injury and/or wear and tear in performance of his duties during service? The examiner should consider the Veteran's report of having knee pain since service, and should discuss whether, from a medical perspective, the Veteran's current disabilities are consistent with the injuries and/or wear and tear activities he describes occurred during service. If the Veteran does not attend this examination, the claims file should still be sent to an appropriately qualified clinician for a response to the question above after review of the claims file. If the opinion cannot be provided without an in-person or virtual examination or interview, this should be made clear. All opinions should be supported by a medical explanation or rationale. 4. Then, readjudicate the issues on appeal after considering all the evidence of record. If the benefits sought remain denied, in whole or in part, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bristow Williams, 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.