Citation Nr: 0736834 Decision Date: 11/23/07 Archive Date: 12/06/07 DOCKET NO. 05-21 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral knee condition. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Anthony M. Flamini, Associate Counsel INTRODUCTION The veteran had active service from January 1945 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The claims file was subsequently transferred to the RO in Waco, Texas. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran seeks service connection for a bilateral knee condition and bilateral hearing loss. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d). Such an examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Id. Furthermore, when a veteran's service medical records are not available, VA's duty to assist, and the Board's duty to provide reasons and bases for its findings and conclusions and to consider carefully the benefit-of-the-doubt rule are heightened. See Moore (Howard) v. Derwinski, 1 Vet. App. 401, 404 (1991). In this case, in July 2004, the RO made a formal finding that the veteran's service records were unavailable after several unsuccessful attempts to locate them. Therefore, VA's heightened duty to assist the veteran in the development of his claim has been triggered. With regard to the veteran's claim for service connection for a bilateral knee condition, the veteran alleges that he injured his right knee at Ardmore Air Force Base in Ardmore, Oklahoma in the summer of 1945. Specifically, the veteran states that he jumped approximately seven feet from a Boeing B-29 Superfortress while carrying a sextant and landed on his right knee. He further states that he received immediate medical treatment for his knee, including the issuance of a knee brace and prescription of medication, but no broken bones were found. The veteran states that he was placed on light duty for three weeks and excused from physical training, but alleges that he continued to have knee problems ever since. Although the veteran's service medical records are unavailable for review, his Separation Qualification Record confirms that he served as a navigator aboard a B-29 aircraft. The veteran's VA treatment records, dating back to March 1999, indicate a diagnosis of bilateral osteoarthritis of the knees. In March 2006, the veteran underwent a right total knee arthroplasty. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, given VA's heightened duty to assist in the absence of service medical records, the Board finds that the duty to obtain a medical examination and opinion has been triggered to determine the etiology of the veteran's current bilateral knee condition. A remand is required to secure this evidence. Similarly, the veteran alleges that he has bilateral hearing loss as the result of acoustic trauma suffered in service. Specifically, the veteran alleges that he tested earplugs in hypobaric chambers at Randolph Air Force Base in Universal City, Texas in January 1945. In addition, the veteran alleges he was exposed to acoustic trauma when assigned to a Boeing B-17 Flying Fortress crew in spring 1945. Although the veteran's service medical records are unavailable for review, his Separation Qualification Record confirms that he served as a navigator aboard a B-17 aircraft, which included gunnery duty. The veteran testified that his hearing has been diminished ever since. He worked as a rancher following service and testified there was no acoustic trauma associated with that occupation. He is currently treated for bilateral hearing loss by the VA and has received hearing aids. Given VA's heightened duty to assist in the absence of service medical records, the Board finds that the duty to obtain a medical examination and opinion has been triggered to determine the etiology of the veteran's current bilateral hearing loss. A remand is required to secure this evidence. Accordingly, the case is REMANDED for the following action: 1. The RO should arrange for the veteran to be scheduled for a VA orthopedic examination to ascertain the nature and etiology of his current bilateral knee condition. Any medically indicated special tests should be accomplished. After reviewing the claims file and examining the veteran, the examiner should offer an opinion as to whether it is at least as likely as not (50% probability or more) that any current bilateral knee condition is causally related to his military service. A detailed rationale for all opinions expressed is requested. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 2. The RO should arrange for the veteran to be scheduled for a VA audiology examination to assess the nature and etiology of his bilateral hearing loss. The claims folder must be made available to the examiner for review for the examination and the examination report must indicate whether such review was accomplished. Based on current examination and review of the relevant lay statements and audiological evidence of record, the examiner is asked to offer an opinion as to whether it is at least as likely as not (50% probability or more) that the veteran's current bilateral hearing loss is related to service, particularly exposure to noise therein. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. In providing this opinion, the examiner should include a complete explanation of the rationale. If the examiner is unable to offer the requested opinion, the report should so state. 3. After completing any additional necessary development, the RO should readjudicate the issues on appeal. If the disposition of any issue remains unfavorable, the RO should furnish the veteran and his representative a supplemental statement of the case and afford the applicable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2007). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ ROBERT C. SCHARNBERGER Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).