Citation Nr: 21027062 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-22 495 DATE: May 4, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and schizophrenia, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1981 to April 1990 and from January 1991 to November 1995. He also had periods of reserve service. These matters come before the Board of Veterans' Appeals (Board) from an August 2014 rating decision. Initially, the Board notes that the bulk of the Veteran's service treatment and personnel records from his second period of active duty (aside from an entrance medical history form and entrance examination) are unavailable. In cases such as this, where a Veteran's service records are lost or unavailable through no fault of his own, there is a heightened obligation for VA to assist in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, this heightened obligation does not establish a heightened "benefit of the doubt" or lower the legal standard for proving a claim of service connection. Russo v. Brown, 9 Vet. App. 46 (1996). In July 2019, the Veteran testified at a Board videoconference hearing at the Agency of Original Jurisdiction (AOJ) before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is associated with the electronic claims file. In July 2020, the Board remanded these matters for additional development. 1. Entitlement to service connection for a lumbar spine disorder is remanded. 2. Entitlement to service connection for a right knee disorder is remanded. 3. Entitlement to service connection for a left knee disorder is remanded. 4. Entitlement to service connection for bilateral hearing loss is remanded. 5. Entitlement to service connection for a psychiatric disorder is remanded. Unfortunately, medical opinions obtained for the Veteran's claimed lumbar spine, right knee, and left knee disorders were inadequate, as each lacked a complete rationale for the conclusion that it was less likely than not that the Veteran's claimed disorder was related to his active duty service. The February 2021 VA fee-based examiner who performed both the knee and lumbar spine examinations also failed to provide any discussion concerning the Veteran's lay assertions and the objective medical evidence regarding his documented leg length discrepancy. Given that the bulk of his service treatment records from his second period of active duty from January 1991 to November 1995 are unavailable, the Board acknowledges VA's heightened duty to assist and finds a remand is warranted to obtain adequate VA medical opinions that contain a complete rationale as well as consideration of the Veteran's competent lay assertions. A February 2021 VA Hearing Loss Disability Benefits Questionnaire revealed pure tone thresholds in both ears of CNT (could not test). The Board is unable to determine whether the Veteran has a current hearing loss disability that meets VA regulations as set forth in 38 C.F.R. § 3.385. As in-service acoustic trauma has been conceded and the February 2021 VA audiological testing was invalid, the Board will not proceed with final adjudication of the service connection claim for bilateral hearing loss until another attempt is made to obtain valid audiological testing. A remand is required to allow VA to make additional attempts to corroborate the Veteran's reported in-service PTSD stressor. During his July 2019 Board hearing, the Veteran asserted that he witnessed a fellow serviceman fatally injured by a tank in the heavy equipment bay while stationed in Japan in 1983 (January or February) during active service. The Board will also not proceed with final adjudication of the service connection claim for a psychiatric disorder until a competent VA medical examination is provided to clarify the nature and etiology of the Veteran's claimed psychiatric disorder on appeal. Evidence of record further reflects that the Veteran received VA medical treatment for his claimed disorders from Atlanta VAMC. As evidence of record only includes treatment records dated up to December 2016 from that facility, all pertinent VA treatment records should be obtained and properly associated with the record. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Finally, evidence of record reflects that the Veteran received private medical treatment for his claimed psychiatric disorder in 1997 at Anderson Memorial Hospital and Patrick B. Harris Psychiatric Hospital. Any additional identified private treatment records should be obtained and associated with the record. 38 C.F.R. § 3.159(c) (2020). The matters are REMANDED for the following actions: 1. Obtain updated treatment records pertaining to the Veteran's claimed lumbar spine, knee, bilateral hearing loss, and psychiatric disorders from Atlanta VAMC from December 2016 to present. 2. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include private medical treatment for his claimed psychiatric disorder in 1997 at Anderson Memorial Hospital and Patrick B. Harris Psychiatric Hospital. With any needed assistance from the Veteran, obtain any identified private treatment records reflecting treatment for his claimed disorders. 3. Based on the information provided by the Veteran regarding his in-service stressor, witnessing a fellow serviceman fatally injured by a tank in the heavy equipment bay while stationed in Japan in 1983 (January or February), the AOJ should take steps to verify the claimed in-service stressor, to include contacting the Joint Services Records Research Center (JSRRC) as well as any other appropriate entities to provide all available information (to include copies of unit records, command histories, and/or any other relevant records during the identified time periods) which might corroborate the Veteran's claimed stressor. If any records sought are determined to be unavailable, or a negative response is received, the AOJ should make a formal finding and notify the Veteran and his agent. 4. Obtain a VA medical opinion to clarify the etiology of the Veteran's claimed lumbar spine disorder from an appropriate examiner. If an opinion cannot be provided without an examination, one should be provided. The electronic claims file must be made available to the examiner, and the examiner must specify in the medical opinion that the file has been reviewed. Based on a review of the evidence of record and with consideration of lay statements from the Veteran, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently or previously diagnosed lumbar spine disorder was causally related to active military service, to include the asserted in-service injuries during physical training (such as running and carrying heavy packs) and/or multiple documented in-service complaints of low back pain from 1988 to 1990. The examiner must also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that arthritis manifested within one year (or prior) of the Veteran's separation from his second period of active duty service in November 1995. In doing so, the examiner should discuss and acknowledge the findings contained in the Veteran's available service treatment records, post-service VA treatment records with noted treatment for leg length discrepancy, and the May 2012 and February 2021 VA examination reports/VA medical opinions. In providing this additional opinion, the examiner should also discuss medically known or theoretical causes of any current lumbar spine disorder and describe how such a disorder generally presents or develops in most cases, in determining the likelihood that any current disorder is related to in-service events as opposed to some other cause. The examiner must also consider the Veteran's statements and the objective medical evidence regarding his documented leg length discrepancy. Consideration should also be given to the Veteran's assertion that he saw an orthopedic surgeon while stationed at New River Air Station in North Carolina during his second period of active service. He reported that he was told he had hip misalignment as well as leg length discrepancy and was given a homemade lift for his shoe made of cardboard. 5. Obtain a VA medical opinion to clarify the etiology of the Veteran's claimed right knee and left knee disorders from an appropriate examiner. If an opinion cannot be provided without an examination, one should be provided. The electronic claims file must be made available to the examiner, and the examiner must specify in the medical opinion that the file has been reviewed. Based on a review of the evidence of record and with consideration of lay statements from the Veteran, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently or previously diagnosed right knee and/or left knee disorder was causally related to active military service, to include the asserted in-service knee pain during physical training (such as running and carrying heavy packs). The examiner must also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that arthritis manifested within one year (or prior) of the Veteran's separation from his second period of active duty service in November 1995. In doing so, the examiner should discuss and acknowledge the findings contained in the Veteran's available service treatment records, post-service VA treatment records with noted treatment for the knees as well as leg length discrepancy, and the February 2021 VA examination report/VA medical opinion. In providing this additional opinion, the examiner should also discuss medically known or theoretical causes of any current knee disorder and describe how such a disorder generally presents or develops in most cases, in determining the likelihood that any current disorder is related to in-service events as opposed to some other cause. Again, the examiner must consider and discuss the Veteran's statements and the objective medical evidence regarding his documented leg length discrepancy. The Veteran has asserted that his knees ached in service, particularly when he ran on asphalt. He indicated he did not seek treatment at sick bay during service but that he would check in with the corpsman in the field for treatment. He stated that when he first sought treatment through the VA Healthcare System, he was told he did not have any cartilage in his knees and that he required bilateral knee replacements at an early age. Obtain a VA medical examination from an appropriate examiner to clarify the nature and etiology of the Veteran's claimed psychiatric disorder, to include PTSD, schizophrenia, and depression. The electronic claims file must be made available to the examiner, and the examiner must specify in the report that the file has been reviewed. The Veteran has asserted that he has PTSD due to the reported in-service stressor of witnessing a fellow serviceman fatally injured by a tank in the heavy equipment bay while stationed in Japan in January/February 1983. The examiner should be provided with a list of the Veteran's verified stressors. If no stressor has been independently verified or found adequate under 38 C.F.R. § 3.304, notify the examiner before the date of the examination. Following a review of the evidence of record and with consideration of the clinical evaluation findings, as well as the Veteran's statements of record, the examiner must provide diagnoses for all psychiatric disorders found. If the diagnosis of PTSD is deemed appropriate, the examiner must provide an opinion as to whether the diagnosis is at least as likely as not (50 percent probability or greater) related to any verified in-service stressor. The examiner must state the specific findings upon which these opinions are based. If a diagnosis of any psychiatric disorder other than PTSD is found to be warranted, the examiner must provide an opinion as to whether any current or previously diagnosed psychiatric disorder at least as likely as not (50 percent probability or greater) began during or was causally related to the Veteran's active service, to include his asserted in-service stressor of witnessing a fellow serviceman fatally injured by a tank in the heavy equipment bay while stationed in Japan in 1983. In doing so, the examiner should discuss and acknowledge the findings contained in the Veteran's available service treatment records, service personnel records, post-service VA treatment records, records from the Social Security Administration, and the February 2021 VA examination report/VA medical opinion. In providing this additional opinion, the examiner should also discuss medically known or theoretical causes of any current psychiatric disorders and describe how such a disorder generally presents or develops in most cases, in determining the likelihood that any current disorder is related to in-service events as opposed to some other cause. 6. Obtain a VA medical examination to clarify the nature and etiology of the Veteran's claimed bilateral hearing loss from an appropriate clinician. The electronic claims file must be made available to the examiner, and the examiner must specify in the report that the file has been reviewed. After a review of the entire evidence of record and with consideration of the Veteran's lay assertions and his conceded in-service noise exposure, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently or previously diagnosed bilateral hearing loss was incurred in or causally related to his active military service, including noise exposure therein. It should be noted that the absence of evidence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. It should also be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including noise exposure and observable symptomatology, such as decreased hearing acuity. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In providing this clarifying opinion, the examiner should also discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that any current hearing loss was caused by noise exposure in service as opposed to some other cause. The examiner should also discuss and reconcile the proffered medical opinion with the May 2012, July 2012, and February 2021 VA examination reports/VA medical opinions of record. 7. Rationale for all requested opinions shall be provided. Each examiner must be informed that the Veteran's service treatment records from his second period of active duty service (aside from an entrance medical history form and entrance examination) are not available. Each examiner is also to be informed that the Veteran's lay statements must be considered in formulating any opinion; if any lay statements are discounted for any reason, the reason for doing so must be so provided. The examiner is informed that discounting lay statements based solely on the lack of corroborating medical evidence will render an opinion inadequate. If any examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2020). 8. After completing the above actions and any other necessary development, the claims on appeal must be readjudicated, taking into consideration all relevant evidence associated with the record since the March 2021 SSOC. If any benefit on appeal remains denied, an SSOC must be provided to the Veteran and his agent. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. D. Deane, 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.