Citation Nr: 21074246 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 20-00 546 DATE: December 14, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for bilateral hand disability is remanded. Entitlement to service connection for right knee disability is remanded. REASONS FOR REMAND The Veteran served with the Army National Guard, to include a period of active duty for training (ACDUTRA) from September 1964 to January 1965. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision. In his December 2019 substantive appeal (VA Form 9), the Veteran indicated he wanted a Board hearing at local VA office. In an October 2021 letter, VA informed the Veteran that his Board hearing was scheduled for a date in December 2021. In a November 2021 letter and November 2021 VA Form 21-4138 (Statement in Support of Claim form), the Veteran indicated that he wished to withdraw his request for a Board hearing. As the Veteran was properly notified of the time, date, and location of his scheduled hearing and chose to withdraw his hearing request, his hearing request is deemed withdrawn. 1. Service Connection Bilateral Hearing Loss The Veteran contends that he has bilateral hearing loss which is etiologically related to his active service. Specifically, the Veteran asserts that his bilateral hearing loss is due to hazardous noise exposure during active service, to include training with live weapons during boot camp and other live fire with the National Guard. See e.g. Correspondence, May 24, 2019. The Veteran was afforded a VA examination in December 2018 and was diagnosed as having left ear hearing loss disability as defined by VA. See 38 C.F.R. § 3.385. At that time, the examiner indicated that he was unable to determine without resorting to mere speculation whether the Veteran's hearing loss was caused by or a result of service because the Veteran's DD 214 showed approximately seven months of service and service with the National Guard; and that it was less likely than not probable that he would have experienced a change in hearing during this brief period of active duty, but without hearing test results in his medical record, the examiner's opinion had to rely on speculation. The Board finds the December 2018 VA opinions inadequate to decide the claim. In this regard, the December 2018 examiner indicated that an opinion could not be provided without resorting to mere speculation, then essentially speculated that his hearing loss was less likely than not etiologically related to active service without explanation. Additionally, the examiner's opinion appears to be based on an absence of treatment records in service based on the lack of service treatment records associated with the claims file. The Board notes that the absence of service treatment records cannot be the sole basis for rendering a negative nexus opinion. Thus, the December 2018 medical opinion is afforded little, if any, probative weight. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Given these deficiencies, a remand is required to afford the Veteran an additional VA examination to determine the nature of his current hearing loss and an opinion as to whether his hearing loss is related to service. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Service Connection Bilateral Hand and Right Knee Disabilities The Veteran seeks service connection for bilateral hand and right knee disabilities. Specifically, he asserts that he was injured in his bilateral hands and right knee during active service, and was treated in the field. See e.g. Correspondence, December 16, 2019. The Veteran has consistently asserted that he injured his bilateral hands and right knee while at Fort Stewart, Georgia during training exercises in 1969, and that he was treated in a field hospital. Id. His available personnel records confirm that he had a period of ACDUTRA from July to August 1969. To date, a VA etiology opinion has not been obtained. The Board finds the Veteran's statements and contention regarding the circumstances of his service, to include an injury during training and treatment at a field hospital, credible. Additionally, the Board is cognizant of the recent holding in Saunders v. Wilkie which stated that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In light of the foregoing, the Board concludes that the Veteran should be afforded VA examinations to determine the nature of any current hand and right knee disabilities and to obtain medical opinions as to whether any such disabilities are related to service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also Saunders, 886 F.3d at 1356. Moreover, the Veteran has indicated that he received treatment for his claimed right knee and bilateral hand injuries at Fort Stewart in 1969. Although the AOJ has unsuccessfully attempted to obtain the Veteran's service treatment records, additional efforts should be undertaken to request the Veteran's reported records at Fort Stewart, any any other available service treatment records. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the issues on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include any outstanding VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. 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, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Contact the National Personnel Records Center, the Army National Guard of North Carolina, Fort Stewart, and any other appropriate entities and attempt to obtain the Veteran's complete service treatment records, to include documents pertaining to his treatment for right knee and bilateral hand injuries at Fort Stewart in 1969. Document all requests for information as well as all responses in the claims file. 3. If any of the Veteran's service treatment records are missing or are otherwise unavailable, this fact should be documented and a formal finding of unavailability should be made with notice to the Veteran and his representative. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional service treatment records and post-service treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature of his hearing loss and whether the disability is related to service. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The examiner must opine whether any hearing loss experienced by the Veteran since approximately March 2018 at least as likely as not (1) began during any period of ACDUTRA or inactive duty training (INACDUTRA); (2) is related to an injury or disease during any period of ACDUTRA or an injury during a period of INACDUTRA, including his reported noise exposure; OR (3) was aggravated by any period(s) of ACDUTRA and INACDUTRA. The examiner must reconcile any conflicting medical evidence of record. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. The medical opinions must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional service treatment records and post-service treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature of any current hand disability and whether any such disability is related to service. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. First, the examiner is asked to diagnose any currently present hand disability. Then, the examiner must opine whether any hand disability experienced by the Veteran since approximately March 2018 at least as likely as not (1) began during any period of ACDUTRA or INACDUTRA; (2) is related to an injury or disease during any period of ACDUTRA or an injury during a period of INACDUTRA, including his reported hand injury in 1969; OR (3) was aggravated by any period(s) of ACDUTRA and INACDUTRA. The examiner should specifically consider the Veteran's reports of injury during active service while training and treatment at a field hospital; and his statements and contentions regarding the circumstances of his service. The examiner must reconcile any conflicting medical evidence of record. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. The medical opinions must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. 6. After all efforts have been exhausted to obtain and associate with the claims file any additional service treatment records and post-service treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature of any current right knee disability and whether any such disability is related to service. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. First, the examiner is asked to diagnose any currently present right knee disability. Then, the examiner must opine whether any right knee disability experienced by the Veteran since approximately March 2018 at least as likely as not (1) began during any period of ACDUTRA or INACDUTRA; (2) is related to an injury or disease during any period of ACDUTRA or an injury during a period of INACDUTRA, including his reported knee injury in 1969; OR (3) was aggravated by any period(s) of ACDUTRA and INACDUTRA. The examiner should specifically consider the Veteran's reports of injury during active service while training and treatment at a field hospital; and his statements and contentions regarding the circumstances of his service. The examiner must reconcile any conflicting medical evidence of record. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. The medical opinions must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.