Citation Nr: 21074519 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-54 613 DATE: December 15, 2021 ORDER Restoration of the 20 percent rating assigned for left knee retropatellar pain syndrome with degenerative changes is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to a compensable rating for right ear hearing loss is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a bilateral foot disability, to include pes planus and plantar fasciitis, is remanded. Entitlement to service connection for a psychiatric disorder, including anxiety and depression, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A comparison of the evidence upon which a 20 percent disability rating was awarded for the Veteran's left knee disability with the evidence available at the time of the rating reduction to 10 percent does not reflect sustained and material improvement in the Veteran's left knee symptoms, especially when considering the functional impact on daily life. 2. There is a balance of evidence as to whether the Veteran's tinnitus began in service and continued throughout the years since. CONCLUSIONS OF LAW 1. The disability rating for left knee retropatellar pain syndrome with degenerative changes was not properly reduced to 10 percent effective September 1, 2015; consequently, the prior 20 percent rating is reinstated for the period at issue from September 1, 2015 to the present. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 4.71a, DC 5010-5261. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from May 1978 to March 1985, with additional service in the National Guard through March 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from various rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided hearing testimony before the undersigned in February 2020. A transcript of this hearing is within the record before the Board. As a preliminary matter, the Board recognizes the Veteran's claim for service connection for a lumbar spine disability was denied by way of a March 2004 rating decision, which was issued in response to a December 2003 claim. The RO at that time considered the Veteran's service treatment records from his period of active service; however, the Veteran also served for a number of years in the National Guard. In October 2017, the Veteran submitted a CD with a copy of at least a portion of his National Guard records. Included in these records was an August 2002 National Guard treatment record showing the Veteran reporting he had arthritis in his back. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). Because relevant service department records were in existence at the time of the Veteran's December 2003 claim and not considered by the RO at the time of the March 2004 rating decision, the Board finds that the Veteran's claim for service connection for a lumbar spine disability did not become final following the March 2004 rating decision. This claim has been pending since December 2003 and new and material evidence is not required for its adjudication. This issue is discussed in the remand, below. Rating Reduction Left Knee The Veteran was originally service connected for retropatellar pain syndrome and chondromalacia, left knee, by way of a December 1996 rating decision. An initial 10 percent rating was assigned effective April 30, 1996. In March 2004, the RO issued a rating decision increasing the left knee rating to 20 percent effective December 17, 2003. At this time, the RO recharacterized the service-connected condition as left knee retropatellar pain syndrome with degenerative changes and limited motion, previously rated under Diagnostic Code 5257. The Rating Decision Codesheet at that time shows the rating was assigned under Diagnostic Codes 5257-5003. Several subsequent rating decisions confirmed and continued the 20 percent rating assigned for the left knee. In September 2012, the Veteran filed a claim for an increased rating. Following an October 2012 VA examination, the RO issued a rating decision in May 2013, which proposed to decrease the left knee rating to 10 percent. In a letter the same month, the RO informed the Veteran that the proposed reduction would decrease his combined rating from 40 percent to 30 percent. The Veteran was informed of his right to a predetermination hearing on the matter and also was notified that he had 60 days to submit evidence showing the reduction was not warranted. The Veteran did request a predetermination hearing and it was held in April 2015. The RO then issued the June 2015 rating decision, which reduced the left knee rating from 20 percent to 10 percent, effective September 1, 2015. The RO assigned this rating under Diagnostic Codes 5010-5261. The Veteran has perfected an appeal as to the rating reduction as he contends none of his left knee symptoms improved at any time. Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Final rating action will reduce or discontinue the compensation effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155, Greyzck v. West, 12 Vet. App. 288, 292 (1999). The law provides that, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). Here, as noted above, Veteran's 20 percent left knee rating was in effect since December 17, 2003, nearly 12 years prior to the rating reduction. Thus, the stabilization of disability ratings provisions from 38 C.F.R. § 3.344 applies. A rating reduction must (1) be based on a review of the entire history of the Veteran's disability; (2) be based on whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations; and (3) must discuss whether that improvement actually reflects an improvement of the Veteran's ability to function under the ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The Veteran need not demonstrate that he is entitled to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the RO's reduction was warranted. See Brown, 5 Vet. App. 413; also see Kitchens v. Brown, 7 Vet. App. 320 (1995). Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In this case, given the procedural history summarized above, the Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105, in terms of properly advising the Veteran of the intended action before it actually occurred and in giving him the opportunity to contest the reduction before it took effect, to include affording him the requested predetermination hearing. Thus, the question in this case is whether the evidence established that the left knee disability had improved at the time of the reduction. As noted above, the Veteran's left knee retropatellar pain syndrome with degenerative changes is rated under 38 C.F.R. § 4.71a, DC 5010-5261. This suggests the Veteran is rated for his arthritis (DC 5010) with the compensation assigned for his limited left knee extension (DC 5261). Limited extension, which is assigned under DC 5261, warrants a 20 percent rating for extension limited to 15 degrees. DC 5010 is the rating criteria for arthritis, which instructs the rating to be assigned based upon the limitation of motion if it has reached a compensable level, such as in this case. If the limitation of motion is not at a compensable level, a 10 percent rating is assigned. 38 C.F.R. § 4.71. The question consequently currently before the Board is whether the Veteran's left knee symptoms, including limited extension, demonstrated improvement at the time of the rating reduction in September 2015. After again reviewing the relevant evidence, the Board finds that the reduction in the rating was not warranted. The evidence does not establish the required improvement in orthopedic symptoms, particularly those symptoms that would impact the ordinary conditions of life and work. The RO's basis for the 20 percent rating for the Veteran's left knee in 2004 was a February 2004 VA examination report that revealed degenerative joint disease in the knee and included an indication of limited range of motion from 0 degrees of extension to 40 degrees of flexion. The RO indicated the 20 percent rating was being assigned based upon the x-ray evidence of arthritis showing involvement of both knees (two major joints). Thus, the rating was assigned based upon the symptomatic arthritis. The rating criteria utilized at that time was Diagnostic Codes 5257-5003. This suggests the Veteran was assigned the rating for his instability (DC 5257) with the compensation assigned for degenerative arthritis (DC 5003). The RO's basis for its May 2013 proposal to reduce the left knee rating was an October 2012 VA examination report. The Veteran reported having constant knee pain in both knees and he indicated they swell, lock, buckle, pop and grind. He reported taking tramadol and topiramate to manage his symptoms. Flare-ups were reported to occur daily and to cause him to need to slow activity. Range of motion, extension in particular, had worsened since the 2004 examination. The Veteran was unable to fully extend at the time of the October 2012 VA examination, ending at 10 degrees. The examiner indicated the Veteran had pain on movement, including significant pain to very light touch, as well as incoordination and impaired ability to execute skilled movements smoothly. These symptoms continued to be associated with the Veteran's arthritis and continued to exist in both knees. The RO proposed to reduce the left knee rating based upon the findings in this examination report. At the April 2015 predetermination hearing, the Veteran reported his knee was worse than it was at the time of the October 2012 VA examination. He reported pain with all movement, an inability to bend, and instability. The RO then afforded the Veteran an updated VA examination. In June 2015, the Veteran again reported constant pain at a level of 8 to 10 on a scale of 1 to 10. He also reported daily grinding and indicated braces were worn on both knees and a cane was used for ambulation assistance. This examiner was unable to test range of motion due to the pain the Veteran was experiencing in his knees and back at the time. The examiner recognized the Veteran's knee disability led to limited standing, sitting and walking, as well as an antalgic gait. The examiner noted that the majority of the exam could not be conducted because the Veteran was reporting being unable to bend his leg. This examiner suggested degenerative joint disease was not present, but, nonetheless, described symptoms similar to what had been reported in 2012 and also what was reported by the Veteran at his predetermination hearing. The RO then issued the June 2015 rating decision reducing the Veteran's rating. The explanation largely relied upon the Veteran's range of motion findings. A November 2015 examination just a few months later included findings indicating flexion limited to 80 degrees and extension to 5 degrees. Pain causing functional loss continued to be reported. Contrary to the June 2015 examiner, this examiner confirmed that x-ray findings do show degenerative arthritis. This examiner indicated the knee disability would limit the Veteran's ability to maintain a physical type of job. Subsequently, in September 2017, a VA examiner indicated, "The patient claims increasing disability due to his left knee problem and after this exam I agree." The Board finds the evidence of record at the time the 20 percent rating was assigned as compared to the evidence of record at the time the reduction was proposed fails to indicate any level of improvement in the left knee. Range of motion decreased; the knees remained arthritic; and pain and functional loss appeared to have worsened. There is no evidence of improvement, particularly functional improvement involving daily life. The Veteran contended his knee condition was worsening and the evidence supports his contention. In consideration of the foregoing, the Board finds that the criteria for a rating reduction are not met because VA did not meet its burden of proof to show sustained and material improvement in the left knee disability at issue. The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Accordingly, restoration of the 20 percent rating for the Veteran's left knee disability is warranted. The Veteran's appeal is granted. Service Connection Tinnitus Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury, or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including tinnitus, an organic disease of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; also see Fountain v. McDonald, 27 Vet. App. 258 (2015). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In this case, the Veteran's DD Form 214 shows the Veteran's military occupational specialty (MOS) as armor crewman. VA recognized at the time of the August 2009 decision granting service connection for right ear hearing loss that the Veteran had in-service noise exposure. The Veteran's service treatment records are without any indication of tinnitus complaints or diagnoses. Post-service records in December 2008 show the Veteran reporting having ringing in his ears from time to time. In a December 2011 statement, he indicated he has intermittent ringing in his ears, with some days it lasting all day. The Veteran reported to a September 2017 VA examiner that he has had this ringing in his ears since his service. In October 2017, on his VA Form 9, he reported having ringing in both ears for years, and he also indicated that he was never exposed to loud noises except while in service. He reported that he was a guard and a building custodian after service. The Veteran also reported that during his early period of service, he was not given ear plugs. Most recently, in February 2020, the Veteran testified at the Board hearing that he first noticed the ringing in his ears in service while at a firing range. He recalled experiencing it intermittently in service while firing pistols, M-16s, and while at the tank gunnery. He recalled it lasting for hours after that and that he still has the same problem. The Veteran is competent to report his history of symptoms, to include ringing in the ears, because this symptom is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). His statements related his history of ringing in his ears since service are, therefore, competent. The Board notes his description of this history has been consistent for many years. Evidence against the Veteran's contentions consists of his failure to mention the tinnitus complaint when providing his medical history at the time of his service separation, and the overall lack of indications of tinnitus in service. Nevertheless, it must be acknowledged that the form used to obtain the Veteran's medical history at service separation does not specifically inquire as to tinnitus, and given the negligible impairment it typically produces, it may not be unreasonable for the Veteran to omit it from the report. Those factors, together with his reports that date his tinnitus to first occurring in service and existing ever since, lead the Board to find that there is an approximate balance of positive and negative evidence as to whether the Veteran's tinnitus initially manifested during his active service. When the evidence is in such relative equipoise, the Board must give the claimant the benefit of the doubt. See Gilbert, 1 Vet. App. 49. Accordingly, the Board finds that the criteria for service connection for tinnitus are met. REASONS FOR REMAND While the Board regrets the delay, the remaining issues on appeal require remand to ensure the evidence is fully developed. Compensable Rating Right Ear Hearing Loss The most recent VA examination of the Veteran's hearing loss was in September 2017, more than four years ago. This examiner indicated the hearing test was invalid. Prior to this, the most recent valid test results are noted in a March 2014 VA examination report. Given how long ago the most recent valid testing was conducted, the Board finds remand is needed in order to afford the Veteran an updated examination to assess the current severity of his service-connected right ear hearing loss. Service Connection Lumbar Spine, Feet and Psychiatric Disorder Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110; 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease diagnosed after discharge, where all evidence, including that pertinent to service, establishes that the disease was incurred therein. 38 C.F.R. § 3.303(d). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty; or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6 (a) and (d). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6 (c)(1). It follows from this that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101 (24), 106, 1131. Active military, naval, or air service, therefore, includes (1) active duty, any period of active duty for training during which a person was disabled or died from a disease or injury; and (2) any period of inactive duty training during which a person was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). National Guard Records As noted above, the Veteran served in the United States Army from May 1978 to March 1985 with additional service in the National Guard. A March 2007 statement from the State of South Carolina Military Department, Office of Adjutant General, shows the Veteran was relieved from the active Army National Guard assignment and placed on the State Retired List effective March 13, 2007. In October 2017, the Veteran sent in a CD with a copy of at least some of his National Guard records. These records were uploaded into the claims file. It is unclear, however, whether these are the complete service records. As will be noted below, symptoms of the claimed lumbar spine, psychiatric and foot disabilities are noted in the record after the Veteran's March 1985 separation from active service, but before his March 2007 release from National Guard service. Thus, it would be useful to know the Veteran's dates of ACDUTRA and INACDUTRA. Lumbar Spine The Veteran claims service connection is warranted for a lumbar spine disability. A review of his claims file shows he reported having recurrent back pain at the time of his December 1977 induction examination; however, no back disability was found at the time of his entrance into active service. His active duty service treatment records show he was treated for back pain in March 1982, and May 1982, although the May 1982 note indicates a suspicion of malingering. The Veteran has provided testimony before the Board to suggest his current back symptoms began after sleeping in a tank in service. July 1982 service treatment records do show reports of sleeping in a tank, although no back pain or other symptoms were reported at that time. Back pain was again reported in January 1984, but at the time of the separation examination in October 1984, no back pain was noted. During the Veteran's National Guard years, back pain was reported on April 29, 1996. There was then an indication of jumping on and off a tanker in the National Guard on June 10, 1996 and medical records the same day indicate the Veteran had back pain following a hydrocelectomy. The Veteran again reported back pain on July 17, 1996, although he had been in a motor vehicle accident two days prior. April 8, 1998 records show the Veteran reporting back pain. Tenderness in the lumbar area with muscle spasm was noted on April 15, 1998. April 22, 1998 records again indicate back pain. Later, on August 6, 2002, the Veteran reported to a clinician that he has arthritis in his back. June 3, 2003 records show a report of chronic pain all over, and September 16, 2003 records show intermittent back pain. An October 29, 2003 clinical record shows the Veteran reporting having back pain and noting it began more than ten years prior. A February 2004 VA examiner confirmed degenerative joint disease in the back. The Veteran again reported at this time that he had back pain for more than ten years and he believed it was secondary to being in a tank and having to sleep on the cold steel. All of these records were prior to the Veteran's separation from National Guard service in March 2007. Records since that time show ongoing back pain. Once the complete National Guard records are associated with the claims file and the dates of ACDUTRA and INACDUTRA are determined, the RO should consider whether additional examination and opinion are needed, particularly if the treatment for back pain occurred during ACDUTRA, or if any incident in service that led to an injury causing back pain was during INACDUTRA. Bilateral Pes Planus & Fasciitis The Veteran contends service connection is warranted for a bilateral foot disability. During his active service, the Veteran was noted as having tinea pedis in November 1979, and was treated for pain in his right big toe after dropping a sledge hammer on it in a motor pool. In January 1980, he was treated after dropping a metal box on his foot. He was again treated for tinea pedis in April 1980. His feet were later noted as normal at the time of the October 1984 separation examination. Pain associated with pes planus was noted on a June 10, 1996 medical record with an indication that the Veteran had been jumping on and off a tanker while in the National Guard. A record the same day shows tinea pedis between the toes of the left foot with left foot swelling indicated as associated with bilateral plantar fasciitis. Pes planus was also indicated on a record of the same day. A July 8, 1996 record shows the Veteran reporting having treatment for residuals of a left foot fracture since June 1996. On July 9, 1997, the Veteran was seen in a podiatry clinic for foot pain; work boots and shoe inserts were ordered. Chronic foot pain was again noted on September 1, 1998. June 6, 2003 records show an indication of chronic pain all over, with a referral to podiatry. All of these records were prior to the Veteran's separation from National Guard service in March 2007. Once the complete National Guard records are associated with the claims file and the dates of ACDUTRA and INACDUTRA are determined, the RO should consider whether additional examination and opinion are needed, particularly if the treatment for feet occurred during ACDUTRA, or if any incident in service that led to an injury causing the foot symptoms was during INACDUTRA. Psychiatric Disorder The Veteran has also claimed that he has a current psychiatric disorder that warrants service connection. During the Veteran's active service, there is one indication of potential anxiety in July 1982. The Veteran had fallen asleep in a tank and subsequently sought treatment after hyperventilating with chest pain. The assessment indicated "esophageal spasm vs. acute anxiety with hyperventilation." There were no other indications of anxiety or depression or any other symptoms of psychiatric disorder during the Veteran's initial period of active service. A March 16, 1998 treatment record is the first indication of the Veteran reporting feeling stressed and depressed. He reported at this time that he had been off alcohol and cocaine for five years, but felt stressed, depressed and tempted. He was referred to the mental health clinic for treatment at that time. An April 8, 1998 record shows he had been in a fight at work two weeks prior. He was again referred for mental health treatment. On May 5, 2003 the Veteran was assessed as having depressive disorder, not otherwise specified (NOS). On May 12, 2003, a record shows him reporting depression since 1993. The Veteran described his depression as "bad" on June 6, 2003 and a clinician noted his depression as stable on September 16, 2003. A February 21, 2004 record shows the Veteran reporting being started on Wellbutrin for depression in 1993 and that he has been taking it ever since. The Veteran confirmed at that time that he has had no alcohol or drug use since 1993. This report also indicated the Veteran was having trouble holding a job due to anger and depression. Major Depressive Disorder was indicated at this time. An October 2004 clinical note, however, seems to suggest the Veteran was again using drugs and alcohol. A November 7, 2005 medical record show the Veteran's plan included continuing medication for depression. These indications of the onset of depression and treatment are all after the Veteran's separation from active service, but before he was retired from the National Guard in March 2007. The Veteran's depression continued to be noted in his records after March 2007. Once the complete National Guard records are associated with the claims file and the dates of ACDUTRA and INACDUTRA are determined, the RO should consider whether additional examination and opinion are needed, particularly if the treatment for depression occurred during ACDUTRA. The Board also notes that the Veteran indicated in August 2017 that his anxiety and depression are claimed to be due to the chronic pain he experiences in his knees and back. He indicated this was due to him being a young man, but having to use a cane to walk and appear like an old man. The RO determined a VA examination was warranted and one was conducted in October 2017. The examiner noted the Veteran as having a history of polysubstance abuse, which was in full remission. The examiner opined that the Veteran's Major Depressive Disorder is less likely than not due to his active service, or due to or aggravated by his service-connected bilateral knee disability. The examiner suggested the Veteran's mood related disorders are subsequent to his heavy, chronic polysubstance use, "which preceded his military service." The basis for this finding is unclear, as there was no indication in the report or in the Veteran's records of substance abuse prior to the Veteran's military service. Further, no explanation or rationale was provided for the conclusion that the Veteran's depression was not caused or aggravated by the service connected bilateral knee disability, to include no comment on the Veteran's August 2017 statement. Further, there was no mention of the indication at least one time in service of potential anxiety. The Board finds this opinion is not sufficient and, therefore, remand is necessary for this issue regardless of what the ACDUTRA and INACDUTRA records establish. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Entitlement to a TDIU Finally, because a decision on the remanded issues could significantly impact a decision on the matter of whether a TDIU is warranted, the issues are inextricably intertwined. A remand of the TDIU claim is, therfore, also required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right ear hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 2. Obtain the Veteran's complete service personnel and treatment/medical records related to his National Guard service. Attempt to verify all active duty for training and inactive duty training dates for his National Guard service from March 1985 to March 2007. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 3. Once the Veteran's records have been obtained, and his dates of ACDUTRA and INACDUTRA verified to the extent possible, determine whether an updated opinion is needed related to the lumbar spine and bilateral foot service connection claims. If such an opinion is needed, the RO should take action to obtain that opinion and associate it with the claims file. 4. Regardless of the ACDUTRA and INACDUTRA dates, the RO should obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's psychiatric disorder is at least as likely as not related to his active service, or proximately due to or aggravated beyond its natural progression by service-connected knee disabilities. The examiner should consider the service treatment record indicating potential anxiety, as well as the Veteran's contention that he experiences depression from being a young man who had to use a cane to ambulate. A fully explained rationale based upon the lay and medical evidence of record should be provided for both the direct and secondary opinions in the report. If needed, the RO should also seek an opinion related to any onset of the depressive disorder during a period of ACDUTRA. 5. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence, to include his claim for a TDIU. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, 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.