Citation Nr: 21040847 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 20-28 072 DATE: July 7, 2021 REMANDED Service connection for bilateral hearing loss is remanded. Service connection for a right knee disability is remanded. Service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from March 2010 to August 2010 and September 2010 to August 2011, including verified service in Southwest Asia from November 2010 to July 2011. This appeal arises from a May 2017 rating decision, finding no new and material evidence to reopen previously denied service-connection claims for hearing loss, tinnitus, left and right knee strain, tinnitus and left lower extremity deep vein thrombosis (DVT). In February 2021, the Board reopened the service-connection claims for hearing loss, bilateral knee, tinnitus and left leg disabilities. The Board remanded these reopened claims to the AOJ for additional development and consideration. On remand, in an April 2021 rating decision, the AOJ granted service connection for tinnitus and pulmonary vascular disease. Another April 2021 rating decision granted service connection for left lower extremity deep venous thrombosis (DVT). As these determinations constitute a full grant of the benefits sought as to those claims, they are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The file is again before the Board for further appellate review. 1. Service connection for bilateral hearing loss. The Veteran has reported military noise exposure from shooting as an infantryman and was also airborne, jumping from planes, and are not contradicted by any evidence of record. Rather, the Veteran's DD Form 214 confirms the Veteran had a military occupational specialty of an infantryman, receipt of a Parachutist Badge, and service in an imminent danger pay area. Therefore, the Veteran's lay statements of in-service noise exposure are considered competent and credible. See 38 U.S.C. § 1154 (a). The Board previously remanded the claim for a VA medical opinion on the etiology of the hearing loss, including as due to Southwest Asia service. On remand, a VA physician provided a negative medical nexus opinion. However, the March 2021 VA examiner provided a negative nexus opinion, based upon documented audiometric data, citing that there was no permanent positive threshold shift during service. However, the medical opinion appears to be inadequate for failing to consider the Veteran's competent lay statements of military noise exposure during service and/or the possibility of a continuity of symptomatology of hearing loss symptoms dating back to service. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Another VA examination and medical nexus opinion is warranted. 2. Service connection for a right knee disability. 3. Service connection for a left knee disability. The Board previously remanded the claim for a VA medical opinion on the etiology of the right and left knee strain, including as due to Southwest Asia service. On remand, a VA physician provided a negative medical nexus opinion. The VA physician rejected the Veteran's competent statements on a history of bilateral knee pain dating back to service, because they were not documented in the service treatment records. The Board finds the opinion improperly discounted the lay evidence absent contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). See also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding that where a veteran has provided lay testimony of an in-service injury or event, and that lay testimony has not been rejected, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). Another VA examination and medical nexus opinion is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician, different from a previous VA examiner, to determine the nature and etiology of the claimed bilateral hearing loss. On review of the record, the examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed bilateral hearing loss is caused by or otherwise etiologically related to his active service, to include in-service noise exposure and/or presumed environmental exposures during service in Southwest Asia. Rationale must be provided for the opinion proffered. In providing the requested rationale, the examiner must reconcile such opinion with the Veteran's competent and credible contentions that he was exposed to excessive noise from weapons and parachuting jumps during active service and that his hearing loss began during active service. 2. Schedule the Veteran for an examination by an appropriate clinician, different from a previous VA examiner, to determine the nature and etiology of the claimed bilateral knee disorder. (A) The examiner should identify whether the Veteran has a diagnosis for any current left and/or right knee disorder. (B) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that any diagnosed left and/or right knee disorder is related to service, including to presumed environmental exposures during service in Southwest Asia. A complete rationale should be provided for all opinions rendered. Also reconcile any competent lay statements by the Veteran on the history of his left and right knee problems during and since service. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chatterjee, Biswajit 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.