Citation Nr: 21040571 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 17-58 105 DATE: July 6, 2021 REMANDED The petition to reopen the service connection claim for depression is remanded. The petition to reopen the service connection claim for sarcoidosis, to include skin lesions, is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1990 to December 1991. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, in February 2020, the Veteran unfortunately died. The RO recognized the Veteran's surviving spouse as a substitute claimant in January 2021. 1. The petition to reopen the service connection claim for depression is remanded; and 2. The petition to reopen the service connection claim for a skin disability is remanded After the most recent January 2019 supplemental statement of the case (SSOC), additional relevant VA treatment records were associated with the claims file. The Appellant was notified of the newly VA generated records in a March 2021 letter, and she requested that the claims be remanded to the agency of original jurisdiction (AOJ) for consideration of this additional evidence in the first instance in an April 2021 correspondence. Thus, the claims will be remanded. Additionally, before his death, the Veteran asserted that there were missing service treatment records between November 1990 and August 1991. Review of the claims file shows the AOJ requested all service and dental records, as well as verification of any periods of unverified service in August 2011. The response only included that the Veteran had not served in Southwest Asia during the applicable periods to be considered a Gulf War Veteran for presumptive service connection purposes. Although there are service treatment records are associated with the claims file dated between November 1990 to August 1991, the RO should undertake efforts to ensure the service records are complete. The Veteran also contended that there were progress notes at "D.O.V.A." from January 1990 that were pertinent to his claim. It is unclear as to what D.O.V.A. references, but it is possible the Veteran was referencing records at the Department of Veterans Affairs. On remand, the RO should attempt to clarify with the Appellant what "D.O.V.A." references, and ensure that all VA treatment records from January 1990, if any exist, are associated with the claims file. If none exist, this finding should also be documented to the claims file. 3. Entitlement to service connection for a right knee disability is remanded. The Veteran asserted that he injured his right knee in service in the same in-service events that caused his left knee and low back injury. Specifically, he injured his right knee when he stepped in a hole while running at AIT, playing basketball during service, and after sliding off a watch rack. See January 2019 hearing transcript. The Veteran was not afforded a VA examination for the right knee. Although the December 2015 VA examiner conducted a left knee physical examination, no findings for the right knee were reported. Instead, the examiner noted that there were "abnormal findings were found for the Veteran's non-claimed extremity" but did not report those findings as they were outside the scope of the current examination request. Thus, on remand, an addendum opinion as to the nature and etiology of any right knee disability should be obtained. 4. Entitlement to service connection for a left knee disability is remanded. The Veteran asserted his diagnosed left knee strain had its onset during or was otherwise related to service, to include stepping in a hole when running during AIT, playing basketball, and falling off watch rack during service. See December 2015 VA examination and January 2020 hearing transcript. The Veteran was afforded a VA left knee examination in December 2015. The examiner, a physician's assistant, concluded that it was less likely than not that the currently diagnosed left knee strain was incurred in or was caused by the in-service injury because the Veteran's medical records did not show he sought treatment for a left knee disability after service. This medical opinion is inadequate in its current form. Service connection is not precluded for a disease or injury merely because it is diagnosed after service. See 38 C.F.R. § 3.303(d). Furthermore, private treatment records show that he was treated for a left knee disability post-service, which renders this medical opinion based on an inaccurate faulty premise. See, e.g., August 2014 private treatment records. Additionally, the Veteran testified that he sought treatment for his left knee disability shortly after leaving service and continuously since service, although those records had been destroyed when his private physician, Dr. A.B., retired. The examiner also did not provide an adequate rationale to support the given conclusion. Thus, on remand, an addendum VA medical opinion as to the nature and etiology of the left knee strain must be obtained. After the most recent January 2019 SSOC, additional VA treatment records were associated with the claims file. The Appellant requested that the claims be remanded to the agency of original jurisdiction (AOJ) for consideration of this additional evidence in the first instance. Thus, the claims will be remanded. Additionally, before his death, the Veteran asserted there were missing service treatment records between November 1990 through August 1991. Review of the claims file shows the AOJ requested all service and dental records from the military records repository, as well as verification of any periods of unverified service in August 2011. Nevertheless, the response to this request only included that the Veteran had not served in Southwest Asia to be considered a Gulf War Veteran for presumptive service connection purposes. Although there are service treatment records are associated with the claims file with dates between November 1990 and August 1991 and the records appear to be complete, the RO should undertake efforts to ensure the service records are complete. Again, the Veteran also contended that there were progress notes at "D.O.V.A." from January 1990 that were pertinent to his claim. It is unclear as to what D.O.V.A. is referencing, but it could be the Veteran was referencing records at the Department of Veterans Affairs. On remand, the RO should attempt to clarify what D.O.V.A. references and ensure that all VA treatment records from January 1990, if any exist, are associated with the claims file. If none exist, this finding should also be documented to the claims file. 5. Entitlement to service connection for a low back disability, to include secondary to the bilateral knee disabilities, is remanded. The Veteran asserted his diagnosed low back strain had its onset during or was otherwise related to service, to include falling in a hole while running during AIT, playing basketball, and slipping off a watch rack. See December 2015 VA examination and January 2020 hearing transcript. The Veteran was afforded a VA examination for the low back in December 2015. The examiner, a physician's assistant, concluded that it was less likely than not that the currently diagnosed low back strain was incurred in or was caused by the in-service injury. The examiner noted the Veteran was treated in service for a low back strain in October 1991 after lifting weights and had no treatment since then. This medical opinion is inadequate in its current form. First, the medical opinion did not offer an adequate rationale to explain why the Veteran's currently diagnosed low back strain did not have its onset during or was otherwise related to service. Furthermore, private treatment records show that he was treated for a back disability after service, which renders this medical opinion based on an inaccurate faulty premise. Thus, on remand, an addendum VA medical opinion as to the nature and etiology of the left knee strain must be obtained. After the most recent January 2019 SSOC, additional VA treatment records were associated with the claims file. The Appellant was notified of the newly obtained records, and she requested that the claims be remanded to the agency of original jurisdiction (AOJ) for consideration of this additional evidence in the first instance. Thus, the claims will be remanded. Additionally, before his death, the Veteran asserted there were missing service treatment records between November 1990 through August 1991. Review of the claims file shows the AOJ requested all service and dental records from the military records repository, as well as verification of any periods of unverified service in August 2011. Nevertheless, the response to this request only included that the Veteran had not served in Southwest Asia to be considered a Gulf War Veteran for presumptive service connection purposes. Although there are service treatment records associated with the claims file with dates between November 1990 and August 1991 and the records appear to be complete, the RO should undertake efforts to ensure the service records are complete. Finally, as discussed above, the Veteran also contended that there were progress notes at "D.O.V.A." from January 1990 that were pertinent to his claim. See March 2019 statement. On remand, the RO should attempt to clarify with the Appellant what D.O.V.A. references, and ensure that all VA treatment records from January 1990, if any exist, are associated with the claims file. If none exist, this finding should also be documented to the claims file. 6. Entitlement to service connection for bilateral hearing loss disability is remanded. The Appellant contends the Veteran's diagnosed bilateral hearing loss disability had its onset during or was otherwise related to service, specifically to his military occupational specialty (MOS) as a Chapparal crewmember. See DD Form 214. He asserts that he was assigned to a Chapparal weapons system attached to a tank. See January 2019 hearing transcript. Of note, the Veteran had already been awarded service connection for tinnitus for the hazardous noise exposure in service related to his MOS. The Veteran was afforded a January 2016 VA audiology examination. The examiner concluded it was less likely than not that the Veteran's hearing loss had its onset during or was otherwise related to service because the bilateral hearing loss preexisted service, and there was no negative shift in hearing acuity during service to show aggravation. This opinion is inadequate in its current form. First, the Veteran's June 1990 entrance examination revealed normal hearing acuity in the right ear, except for 35 decibels at 6000 hertz. Similarly, the Veteran had normal hearing acuity in the left ear at entrance into service, except 35 decibels at 4000 hertz and 30 decibels at 6000 hertz. Based on the entrance examination, the January 2016 VA examiner determined that a hearing loss disability in both ears preexisted service. Notably however, the reduced hearing acuity noted above does not meet the definition of hearing loss for VA purposes and the Veteran was not placed on a physical profile for hearing loss at entrance. Thus, there was no hearing loss disability noted at entrance for either ear. There is no other evidence indicating the Veteran had a preexisting hearing loss disability to rebut the presumption of soundness by clear and unmistakable evidence; thus, the Veteran was sound at entry into service. Additionally, the Veteran was not afforded an audiogram at discharge from service. See November 1991 report of medical examination at discharge. Therefore, the examiner's finding that there was no negative threshold shift in hearing acuity during service is an inaccurate factual premise. An addendum VA medical opinion should be obtained on remand to determine the nature and etiology of the bilateral hearing loss disability. After the most recent January 2019 SSOC, additional VA treatment records were associated with the claims file. The Appellant requested that the claims be remanded to the agency of original jurisdiction (AOJ) for consideration of this newly VA generated evidence in the first instance. Thus, the claims will be remanded. Additionally, before his death, the Veteran asserted there were missing service treatment records between November 1990 and August 1991. Although there are service treatment records associated with the claims file that reflect dates between November 1990 to August 1991, the RO should undertake efforts to ensure the service records are complete. Finally, as discussed above, the RO should ensure that all VA treatment records from January 1990, if any exist, are associated with the claims file. If none exist, this finding should also be documented to the claims file. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Ensure all service treatment records have been associated with the claims file, specifically that the service treatment records are complete between November 1990 and August 1991. See November 2017 VA Form 9. If the records are complete, note this finding in the file. 3. Clarify with the Appellant what January 1991 "D.O.V.A." records may reference. See March 2019 statement. If D.O.V.A. refers to "Department of Veterans Affairs," obtain any January 1991 treatment records and associate them with the claims file. If the meaning of "D.O.V.A." is unascertainable and/or there are not January 1991 VA treatment records, document this finding to the claims file. 4. Then, obtain a VA addendum opinion from an appropriate clinician as to the nature and etiology of the right knee disability. After a thorough review of the claims file, the examiner should address the following: a) Identify any right knee disabilities diagnosed during the appellate period. See January 2019 hearing transcript. b) If the Veteran had no identifiable right knee disability, provide an opinion as to whether the Veteran's right knee symptoms (i.e. pain and stiffness) amounted to functional impairment of earning capacity. See, e.g., December 2015 VA knee examination report, December 2014 and April 2015 private treatment records, and January 2019 hearing transcript. *In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018), the United States Court of Appeals for the Federal Circuit (Court) held that pain alone can constitute a disability for VA purposes when such pain amounts to functional impairment of earning capacity. The Board notes that the Veteran provided lay descriptions of his symptoms (i.e. pain and stiffness). c) For each right knee disability diagnosed during the appeal period, provide an opinion as to whether it had its onset during or was otherwise related to service, to include stepping in a hole while running during AIT, slipping off a watch rack, and playing basketball. 5. Obtain a VA addendum medical opinion as to the nature and etiology of the left knee disability. After a thorough review of the claims file, the examiner should address the following: a) Identify each left knee disability, to include arthritis, bursitis, and strain diagnosed during the appellate period. b) For each left knee disability diagnosed during the appellate period, provide an opinion as to whether it had onset during or was otherwise related to service, including twisting his knee after stepping in a hole while running at AIT, playing basketball, or falling off a watch rack. See January 2020 hearing transcript; see also, e.g., November 1990, February 1991, March 1991, April 1991, May 1991, June 1991, August 1991, and November 1991 service treatment records. 6. Obtain a VA addendum opinion from an appropriate clinician as to the nature and etiology of the currently diagnosed low back strain. After a thorough review of the claims file, the examiner should address the following: a) Provide an opinion as to whether the low back strain had its onset or was otherwise related to service, to include the Veteran twisting his left knee after stepping into a hole while running during AIT, playing basketball, and/or falling off a watch rack during service. See January 2019 hearing transcript. b) ONLY IF one or both knees are found to be related to service, provide an opinion as to whether the low back disability (1) was caused by or (2) was aggravated by either knee disability. 7. Obtain a VA addendum opinion from an appropriate clinician as to whether the currently diagnosed bilateral hearing loss disability had its onset during or was otherwise related to service, specifically as to whether it was related to the repeated hazardous noise exposure in his duties as a Chaparral crewmember. See DD Form 214 and January 2019 hearing transcript. *Of note, bilateral hearing loss for VA purposes was not noted on entrance into service, and the Veteran was presumed sound at entry. *The examiner is reminded that a negative nexus opinion cannot solely be based on a lack of hearing loss during service. Furthermore, although the examiner must review the entire claims file, the Board notes that the Veteran was NOT afforded a discharge audiogram. (Continued on the next page) 8. Readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harper, 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.