Citation Nr: 21011568 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-47 060 DATE: March 2, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1974 to March 1977. The Veteran also had subsequent service in the National Guard. In January 2021, he had a hearing before the undersigned Veterans Law Judge. As an initial matter, the Board notes that the Veteran was denied service connection for compensation purposes for a dental condition in a September 2016 rating decision. In an August 2017 statement, the Veteran indicated that he was appealing this denial of his claims for benefits for his dental problems. However, as of March 24, 2015, Veterans seeking to appeal denials at the Regional Office (RO) level must use the standardized notice of disagreement (NOD) forms promulgated by the VA. See 38 C.F.R. § 19.21. Although the Veteran expressed intent to appeal the RO’s decision related to his dental benefits, the Veteran did not file a valid NOD within one year of notification of the September 2016 rating decision. Therefore, this issue is not currently on appeal. With regard to the issues on appeal, the Veteran testified at the January 2021 hearing that he served in the Maryland National Guard. Specifically, he asserted that he served with the Headquarters Company, First Battalion 115th Infantry, White Oak, Maryland, from July 21, 1979, to July 20, 1980. He then served with the Pennsylvania National Guard, 20th Infantry, 28th Detachment, Harrisburg, Pennsylvania, from January 12, 1998, to November 11, 1999. As the claims file does not contain complete service treatment records for these periods of service, exhaustive efforts should be made to obtain these records. Additionally, the Veteran testified at the January 2021 hearing that he had received private treatment from Dr. Louis Kuskin of Harrisburg, Pennsylvania, dating back to 1989 and from Dr. Raul. Upon remand, attempts should be made to obtain all outstanding private and VA treatment records. Finally, at the January 2021 hearing, the representative requested that the Veteran be provided VA examinations in order to determine the etiology of the Veteran’s claimed hearing loss and bilateral knee disabilities. In light of the Veteran’s testimony asserting that he injured his knees while loading a truck during a period of active duty for training in the Pennsylvania National Guard in 1998 and that he was exposed to noise during service, and in consideration of the fact that the evidence of record reflects that the Veteran’s service treatment records from the period of March 1974 to March 1977 are not available for review, the Veteran should be provided VA examinations pertaining to his bilateral hearing loss and his bilateral knee disability claims. The Board will address the credibility of his assertions concerning in-service events/injuries when adjudicating the claims on the merits. The matters are REMANDED for the following action: 1. Exhaust all available avenues, to include contacting the Veteran’s National Guard units, to obtain service treatment records for the Veteran’s service in the Maryland National Guard, Headquarters Company, First Battalion 115th Infantry, in White Oak, Maryland, from July 21, 1979, to July 20, 1980; and in the Pennsylvania National Guard, 20th Infantry, 28th Detachment, in Harrisburg, Pennsylvania, from January 12, 1998, to November 11, 1999. Associate any records received, including negative responses, with the claims file. 2. Send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable the Regional Office (RO) to obtain any outstanding, pertinent private medical records, to particularly include records from Dr. Louis Kuskin of Harrisburg, Pennsylvania, dating back to 1989 and from Dr. Raul. Request all identified records. Associate any records received, including negative responses, with the claims file. 3. Obtain any medical records from the Philadelphia VAMC for treatment since July 2017. 4. After the above-requested records have been obtained to the extent possible, schedule the Veteran for a VA examination for his claimed bilateral hearing loss. All appropriate tests and studies should be performed, and all clinical findings reported in detail. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, examining the Veteran, and noting his reported history of symptoms, the examiner should determine whether the Veteran has hearing loss of either ear, according to VA standards. Then, the examiner should provide an opinion as to whether it is at least as likely as not that any diagnosed hearing loss of either ear was incurred in, or caused or aggravated by, the Veteran’s military service. See Veteran’s testimony as to in-service noise exposure. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. After the above-requested records have been obtained to the extent possible, schedule the Veteran for a VA examination for his claimed bilateral knee disabilities. All appropriate tests and studies should be performed, and all clinical findings reported in detail. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, examining the Veteran, and noting his reported history of symptoms, the examiner should diagnose the Veteran with all current disabilities of either knee. Then, the examiner should provide an opinion as to whether it is at least as likely as not that any diagnosed disability of either knee was incurred in, or caused or aggravated by, the Veteran’s military service. See Veteran’s testimony as to the circumstances of the reported knee injury. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Durham, 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.