Citation Nr: 0707766 Decision Date: 03/15/07 Archive Date: 04/09/07 DOCKET NO. 05-01 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a right knee disability. ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from March 1983 to July 1986, and he had subsequent service in the Texas Army National Guard until his discharge in 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon (the RO) which denied service connection for a low back disability, a left knee disability and tinnitus. In September 2006, the veteran presented testimony at a personal hearing held at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the veteran's VA claims folder. This appeal is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that these issues must be remanded for further evidentiary development. The Board initially notes that the veteran's complete service medical records are unavailable. Efforts to obtain such have been futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999) [VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile]. Reasons for Remand The low back claim In essence, the veteran contends that he injured his back in service. However, the veteran indicated in an October 1985 in-service examination that he was hospitalized for a strained back prior to enlisting in October 1981. Moreover, the evidence of record indicates a post-service back injury, with surgery occurring in 1987. Given this medical history, questions as to the etiology of the veteran's current back disability remain. These questions concern: (1) whether any pre-existing low back disability was aggravated during the veteran's period of active duty from March 1983 to July 1986; and (2) the role that the post-service injury may have played in the current disability. These questions cannot be answered by the Board itself . See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. A medical opinion is required to address these questions. The tinnitus claim In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for Veterans Claims has held that, in situations in which there is competent evidence of a current disability and either (1) evidence indicating an association between the claimant's disability and his active service or (2) a service-connected disability, is to obtain a medical opinion as to whether there is a nexus between the claimed disability and his active service and/or the service- connected disability. See Charles v. Principi, 16 Vet. App. 370 (2002). With respect to the tinnitus claim, the veteran has made statements that he was exposed to gunfire on the rife range without the aid of hearing protection. The record contains a current diagnosis of tinnitus. Hickson elements (1) and (2) are arguably satisfied. A medical nexus opinion is therefore required per Charles. The right knee claim During a service medical examination in 1985 the veteran described having been treated for a dislocated knee he sustained while at Fort Polk. A medical examination conducted by A.N.B., M.D. in November 2003 revealed that the veteran's right knee had a thickened cortex of the posterior proximal tibial metaphysis. As with the tinnitus claim, Hickson elements (1) and (2) have arguably been met. As to Hickson element (3), Dr. A.N.B. indicated that the thickened cortex mentioned above might be an incidental finding due to the described nature of the in- service injury and the location of the discovered injury. He did not make a conclusive medical nexus statement. A medical nexus opinion is therefore required. Accordingly, this case is REMANDED to the Veterans Benefits Administration (VBA) for the following actions: 1. VBA should attempt to obtain any available decisions, with supporting medical records, with respect to any workers' compensation claims filed by the veteran, in particular one related to a back injury in November 1987. Any such records so obtained should be associated with the veteran's VA claims folder. 2. VBA should then arrange for the veteran to be examined by a physician with appropriate expertise. With respect to the back claim, the examiner render an opinion, in light of the veteran's entire medical history, as to whether the veteran's low back disability was or was not aggravated during service. The examiner should also indicate the role, if any, played by the post-service back injury. With respect to the right knee claim, the examiner should render an opinion as to whether a right knee disability currently exists, and if so is such is related to the veteran's described injury at Fort Polk. A report should be prepared and associated with the veteran's VA claims folder. 3. VBA should also arrange for the veteran to be examined by an audiologist, who should review the medical evidence, in particular the veteran's 1985 in-service audiometric exam, and render an opinion as to whether the claimed tinnitus is a result of in-service noise exposure. A report should be prepared and associated with the veteran's VA claims folder. 4. After taking any further action it deems necessary, VBA should then readjudicate the veteran's claims of entitlement to a service connection for low back, tinnitus and right knee disabilities. If the benefits sought on appeal remain denied, VBA should provide the veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ______________________________________________ Barry F. Bohan 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) (2005).