Citation Nr: 21072851 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 19-37 388 DATE: December 6, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1956 to December 1959. Information from the Veteran indicates the Veteran also served in the National Guard from June 1964 to December 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. The Board is expanding the scope of the Veteran's claims to encompass any diagnosis raised by the record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Pursuant to section 3.159(c) of Title 38 of the Code of Federal Regulations, VA has a duty to assist a veteran in obtaining evidence in the custody of a Federal department or agency, as well as evidence not in the custody of a Federal department or agency, when such evidence is pertinent to a veteran's claim. 38 C.F.R. § 3.159. Furthermore, in a claim for disability compensation, VA will make efforts to obtain a claimant's service treatment records, if relevant to the claim. 38 C.F.R. § 3.159 (c)(3). It appears that the Veteran's service treatment records are fire related. Stated another way, the service treatment records are not currently available for review because they were destroyed in the National Personnel Records Center's (NPRC) 1973 fire at their St. Louis, Missouri facility. Where "service... records are presumed destroyed... the BVA's [Board's] obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened." O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). There is an expanded duty to assist the Veteran in obtaining evidence from alternate or collateral sources. Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006) As noted above, the Veteran has advised he had service in the National Guard. The file also indicates that the Veteran may have also served in the United States Army Reserves. A review of the record on appeal, however, does not reveal that the RO has ever verified the Veteran's dates of National Guard or Reserve component service, including all dates of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA), or specifically requested his medical records from his National Guard or Reserve component. It is possible the National Guard or Reserve component may have copies of his service treatment records from active duty in the United States Army from 1956 to 1959. The Veteran, however, never identified his National Guard component (or Reserve component if he also served in the United States Army Reserves). Therefore, the Board finds that a remand is required to obtain this information from the Veteran and then obtain these records if they exist. 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. There has not been a VA examination to determine whether the Veteran has a hearing loss and or tinnitus disability related to service. The Veteran testified his duties during active service involved noise exposure from nearby tanks and repairing artillery. In addition, during his National Guard service, the Veteran served in a crew firing 155 mm guns. A VA examination was scheduled but the file reflects it was cancelled. The documentation does not state why the examination was cancelled. The Veteran testified he never knew a VA examination had been scheduled. Once the records development is completed, a VA medical examination and accompanying medical opinion is needed to ascertain whether hearing loss and tinnitus disabilities are present and to ascertain the relationship to service. 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Because of the apparent loss of records to fire, the VA examiner should take a detailed history form the Veteran regarding the type, frequency, and severity of noise exposure both in service and after separation. 3. Entitlement to service connection for a right foot disability is remanded. 4. Entitlement to service connection for a left foot disability is remanded. The Veteran also testified that regarding his claims for a foot disability, he sought treatment for a cold weather injury while in active duty. He testified that the injuries occurred while stationed at Fort Drum, New York. His duties included driving two and a half ton trucks on 150- mile trips (one way) to pick up supplies in the extreme cold winter weather months in upstate New York. He had to seek treatment at an Air Force medical facility in Rome, New York. The Board believes this is a reference to Griffiss Air Force Base. On remand, the RO should attempt to obtain any medical records from any Air Force medical facility in or near Rome, New York and associate the records with the file. Further, the medical records establish the Veteran has complained of right foot pain diagnosed as idiopathic neuropathy. He attributes his right foot symptoms to the cold weather injury he suffered during active service. He now also experiences similar although not as severe symptoms in his left foot. The Veteran underwent an October 2019 VA examination to determine whether he has a disability related to cold weather exposure. The VA examiner diagnosed idiopathic bilateral lower extremity neuropathy. When the Board relies on a medical opinion, such opinion must be adequate for judicial review. D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The examiner, however, stated that the idiopathic bilateral lower extremity neuropathy "may or may not be" related to the Veteran's cold weather exposure but there is no documentation related to cold weather exposure. This opinion does not assist the Board because it basically repeated the question before the Board without answering it. The whole point of the examination is to determine if the bilateral neuropathy is related to service. Further, the absence of a disability in service treatment records alone does not preclude service connection. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (lack of documented findings is not an adequate basis for a negative opinion). This is particularly significant in the Veteran's case as his treatment records are fire related. Therefore, the Board has determined that the Veteran should receive a new VA examination. Upon remand, the new VA examination should offer an opinion based upon the medical records associated with the file and the Veteran's lay evidence. In addition, the medical records of evidence suggest that the Veteran's symptoms may be caused or aggravated by the low back disability. If the low back disability is ultimately service connected, then an opinion is needed to determine if it caused or aggravated the Veteran's bilateral feet neuropathy disability. 38 C.F.R. § 3.310. 5. Entitlement to service connection for a low back disability is remanded. The Veteran testified that he now suffers from low back pain and other symptoms. He believes he developed a low back disability from his activities in active surface such as jumping off tanks. He has been diagnosed with osteoarthritis in the lumbar spine. In addition, he has undergone a lumbar laminectomy operation. The operation occurred at a private hospital by a private surgeon and the records from the operation has not been associated with the file. The Board has determined that the records are relevant and there is a reasonable possibility that the records could help substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) (discussing records from the Social Security Administration). Accordingly, upon remand, these records should be obtained. In addition, after the records development has occurred, the Veteran should receive a VA examination to determine if any back disability is related to service. McLendon, supra. The matters are REMANDED for the following action: 1. Ask the Veteran to identify his National Guard unit and United States Army Reserves unit. 2. Contact the Veteran's National Guard unit and United States Army Reserves unit and obtain records as to his dates of reserve service including all dates of ACDUTRA and INACDUTRA. The request must also include copies of any medical records of the Veteran that may still be with the National Guard and Reserve units. All actions to obtain the requested records should be documented fully in the claims file. If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. Ask the proper Federal custodian for the Veteran's records of treatment from 1957 to 1958 at an Air Force hospital in Rome, New York. If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 4. Ask the Veteran to identify all outstanding treatment records relevant to his claims including treatment records for his June 2016 laminectomy. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 5. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of the lumbar spine onset during service or is otherwise related to an in-service injury, event, or disease, to include jumping off tanks and repairing artillery. The examiner is also advised that the Veteran's records are fire-related and there may be no other service treatment records available for review. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 6. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability of the feet onset during service or is otherwise related to an in-service injury, event, or disease, to include cold weather exposure. The examiner should also address whether any current disability of the feet is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) any lumbar spine disability, to include residuals from a 2016 lumbar laminectomy. The examiner is also advised that the Veteran's records are fire-related and there may be no other service treatment records available for review. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 7. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current hearing loss or tinnitus disability arose during service or is otherwise related to service, to include as due to noise exposure from repair and firing of artillery and from tanks. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The examiner is also advised that the Veteran's records are fire-related and there may be no other service treatment records available for review. In the examination, the VA examiner must interview the Veteran in detail as to his service noise exposure, the onset and subsequent history of symptoms, his post-service occupational noise exposure, and his recreational noise exposure The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. The examiner should explain why the Veteran's current bilateral hearing loss is or is not merely a delayed response to in-service noise exposure. The examiner should explain the reasoning for any opinion provided, to include the medical significance of any findings, as adjudicators are precluded from making medical findings. If the Veteran's post- service noise exposure is the major factor in his hearing loss, the examiner should explain whether the in- service noise exposure could still be the originating cause, or a lesser cause of the hearing loss. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.