Citation Nr: 21026616 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-26 698 DATE: May 3, 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 a back disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 1982 to June 1986 with additional periods of service in the Army Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded the issues on appeal for additional development. As discussed below, there has not been substantial compliance with the October 2018 remand instructions, so the matters must be remanded. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. 3. Entitlement to service connection for a back disability is remanded. 4. Entitlement to service connection for bilateral hearing loss is remanded. For the below reasons, the Board finds that further development is necessary. First, the Veteran has indicated that she sustained an injury to her back and bilateral knees during her service in the Army Reserves. She reportedly has additional periods of service in the Army Reserves from 1986 to 1999. However, the available records do not contain verification of such service or complete service personnel records and service treatment records associated with such service. In the October 2018 remand, the Board directed the RO to verify the Veteran's periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) and to obtain all service personnel and treatment records from her Army Reserve service. The record shows that the RO contacted the Defense Finance Accounting Service (DFAS) and requested copies of the Veteran's leave and earning statements (LES) for her Army Reserve service. Although the record now contains LES records associated with the Veteran's Army Reserve service, the Board finds that this information is insufficient to comply with the Board's request to verify the periods of the Veteran's Army Reserve service. Moreover, the record does not include any indication that the RO make any requests for service personnel records or service treatment records for the Veteran's Army Reserve service as directed. Second, the record includes a December 2019 VA audiological examination, which was provided in compliance with the October 2018 Board remand. However, the December 2019 VA examiner found that the Veteran had excessive, dry, hard cerumen bilaterally. As a result, during audiological testing, the December 2019 VA examiner determined that the Veteran had poor agreement between pure tones and speech audiometry, and testing could not be performed. Currently, the Veteran does not have a diagnosis for bilateral hearing loss for VA purposes, and the December 2019 VA examination is inadequate for adjudicative purposes. A remand is required to afford the Veteran another opportunity to be tested for bilateral hearing loss. Third, in a December 2019 VA opinion, the VA examiner opined that the Veteran's back disability and bilateral knee disability were less likely than not incurred in or caused by service. In making that determination, the VA examiner found that the Veteran's disabilities were simple age-related degenerative disc disease or degenerative joint disease. The VA examiner found that the Veteran's injuries were minor, soft tissue injuries and were not major or severe enough to cause her current conditions. However, the VA examiner did not address the Veteran's specific contentions regarding the nature of her in-service injury to her back and knees; nor did the VA examiner address a March 1993 report of medical history documenting the Veteran's report of recurrent back pain, as directed by the October 2018 remand. Accordingly, the Board finds that the December 2019 VA examiner's opinion is both inadequate and did not comply with the October 2018 remand. For all the above reasons, the Board finds that another remand is required to substantially comply with the October 2018 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998) The matters are REMANDED for the following actions: 1. Ask the Veteran to provide a date for when her back and bilateral knee injury occurred during her Army Reserves service. 2. After the Veteran has responded to the above request, contact the appropriate official sources to verify her period of service for that time period. Such verification should identify whether that period of service was ACDUTRA or INACDUTRA. 3. Then, contact the appropriate official sources, to include the Department of the Army, to obtain all outstanding service personnel records and service treatment records for the Veteran's Army Reserve service, to include from 1986 to 1999. 4. Obtain all outstanding treatment records for the Veteran's back disability, bilateral knee disability, and bilateral hearing loss that are not currently of record. 5. Schedule the Veteran for a VA audiological examination by an appropriately qualified clinician. The examiner should respond to the following: (a.) Does the Veteran have a diagnosis for bilateral hearing loss for VA purposes? To the extent that audiological testing cannot be performed due to cerumen or any other issue with the Veteran's ears, the VA examiner should comment as to whether this issue could be impacting or contributing to her hearing loss. (b.) Is it at least as likely as not that the Veteran's bilateral hearing loss is related to her active duty service, to include her reported in-service noise exposure working as a generator mechanic? In providing the above opinions, the examiner must consider the Veteran's statements regarding her military noise exposure and any post-service occupational or recreational noise exposure, or lack thereof. The examiner must also consider her statements concerning the onset and continuity of her symptoms during service. To the extent that the examiner finds that the Veteran's hearing was normal during military service, the examiner must opine as to whether any post-service noise exposure or any other factor caused her current bilateral hearing loss. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 6. After completing the above development, obtain addendum opinions by an appropriately qualified clinician to determine the nature and etiology of the Veteran's back and bilateral knee disabilities. (a.) The examiner should provide an opinion addressing whether it is at least as likely as not that the Veteran's back disability and bilateral knee disability were related to her active duty service, to include her reported in-service back injury while carrying field equipment. (Continued on the next page) (b.) The examiner should provide an opinion addressing whether it is at least as likely as not that the Veteran's back disability and bilateral knee disability were related to a period of ACDUTRA, to include her reported fall from a helicopter during a field exercise. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.