Citation Nr: 0947218 Decision Date: 12/14/09 Archive Date: 12/24/09 DOCKET NO. 07-02 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to a service-connected left ankle disability. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Schroader, Associate Counsel INTRODUCTION The Veteran served on active duty for training from January 1982 to May 1982, and on regular active duty from October 2001 to September 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veteran's Affairs (VA) regional office (RO) located in Louisville, Kentucky that denied the Veteran's claims for service connection for a low back disability and bilateral hearing loss. 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 A. Hearing Loss The Veteran seeks service connection for bilateral hearing loss. After a thorough review of the Veteran's claims folder, the Board has determined that additional development is necessary prior to adjudication of this claim. The Veteran claims that he incurred bilateral hearing loss as a result of acoustic trauma experienced as an indirect fire mortarman in the Army National Guard (Kentucky) for over 21 years between November 1981 and February 2003, including when he was activated (also as a mortarman) between October 2001 and September 2002. See DD Form 214; NGB Form 22 (ARNG), Separation Report, February 2003. The Veteran's January 1982 enlistment audiogram reflects some decreased hearing sensitivity, particularly in the left ear, as reflected by high pure tone thresholds in the high frequencies. Specifically, the audiogram reflects pure tone thresholds in January 1982 were as follows: Hertz (decibels) 500 1000 2000 3000 4000 6000 RIGHT 0 0 0 5 5 25 LEFT 5 5 5 5 40 55 A March 1982 separation examination report (from active duty for training) reflects substantially lower pure tone thresholds in the higher frequencies. Specifically, pure tone thresholds were as follows: Hertz (decibels) 500 1000 2000 3000 4000 6000 RIGHT 15 5 5 5 10 15 LEFT 10 5 0 5 10 10 Since March 1982, the Veteran's periodic examination reports reflect that his hearing sensitivity decreased, particularly in the high frequencies. The Board notes that June 1987 service treatment records reflect that the Veteran injured his thumb during training exercises loading mortar tubes. The Board also notes that, at the DRO hearing, the Veteran testified that he handled rounds up to 120 mm. See id. at 4. A February 1990 periodic examination report reflects that the Veteran was diagnosed at that point with bilateral high frequency hearing loss. The February 1990 examination report reflects pure tone thresholds as follows: Hertz (decibels) 500 1000 2000 3000 4000 6000 RIGHT 15 5 5 5 25 20 LEFT 15 10 5 10 55 55 Periodic examination reports dated in 1994 and 1999 similarly reflect some high frequency hearing loss. The Veteran was called to active duty from October 2001 to September 2002. An October 2001 audiological examination report reflects a diagnosis of high frequency hearing loss with a notation that the Veteran was "routinely noise exposed" at frequencies over 2000 Hertz. The report reflects pure tone thresholds as follows: Hertz (decibels) 500 1000 2000 3000 4000 6000 RIGHT 5 0 5 20 40 30 LEFT 5 5 5 20 60 65 A July 2002 separation examination report reflects pure tone thresholds as follows: Hertz (decibels) 500 1000 2000 3000 4000 6000 RIGHT 5 0 5 20 40 30 LEFT 5 5 5 20 60 65 An August 2003 VA audiological examination report reflects that the Veteran reported a history of noise exposure from artillery, and the examiner opined that it was at least as likely as not that the Veteran's bilateral hearing loss was related to service. The Veteran's service treatment records, however, were not available for the examiner's review at that time. A second, July 2007 VA audiological examination was provided to the Veteran. The examiner noted that the Veteran's service treatment records were reviewed, and opined that the Veteran's bilateral hearing loss was less likely as not aggravated during "active service," reasoning that the Veteran's hearing sensitivity remained about the same according to the October 2001 and July 2002 audiograms. VA's duty to assist includes providing a veteran with a medical examination when the record (1) contains competent evidence that the veteran has a current disability, (2) contains evidence indicating that the disability is related to service, and (3) does not contain sufficient medical evidence for VA to make a decision, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2009); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that while the Veteran was provided with two audiological VA examinations, the first examiner in August 2003 did not have an opportunity to review the Veteran's service treatment records, and the second, July 2007 examiner only referenced the Veteran's period of active service between October 2001 and September 2002 in her explaining her rationale. It is not clear if she considered whether the Veteran's initial period of active duty for training, or his over 20 years of service in the Army National Guard prior to when he was activated in October 2001 may have caused or aggravated the Veteran's hearing loss. Based thereon, the Board finds that a new VA examination should be provided that addresses the Veteran's entire length of over 21 years of service as a mortarman in the Army National Guard from November 1981 to February 2003, to include his period of active duty for training from January 1982 to May 1982, as well as his period of active duty from October 2001 to September 2002. B. Low Back Disability The Veteran also seeks entitlement to service connection for a low back disability secondary to his service-connected left ankle disability. After a thorough review of the Veteran's claims file, the Board has determined that additional development is necessary prior to adjudication of this claim. The Veteran alleges that during his period of active duty from October 2001 to September 2002, he incurred a low back disability due to an alleged uneven gait caused by his left ankle condition, and due to heavy lifting he alleges he performed. See DRO Hearing Transcript, January 2007 at 3-4. VA treatment records dated between 2005 and 2007 reflect that the Veteran complained of chronic lower back pain. The records reflect diagnoses of, among other things, degenerative disk disease and spondylosis of the lumbar spine. See, e.g., VA Treatment Records, October 2005 and June 2007. July 2007 VA treatment records reflect that a spinal cord stimulator was surgically implanted. The Board notes, however, that the claims file does not contain any VA treatment records from the Lexington, Kentucky VA medical center dated prior to February 2005, or from the Somerset, Kentucky VA outpatient clinic dated prior to January 2004. The Board also notes that it is not clear if such records were requested. At the same time, the Board notes that Veteran specifically reported on Forms 21-4142 he submitted with his claims in June 2003 that he began receiving treatment for his low back condition at the VA medical center or outpatient clinic back in 2002, which would be very shortly following separation. VA has a duty to assist the Veteran in obtaining all potentially relevant documents to substantiate a claim, including medical evidence either to verify or not verify the claim. 38 U.S.C.A. § 5103A(a)(1), (b) (West 2002); 38 C.F.R.§ 3.159(c) (2009). Therefore, an attempt should be made to obtain all of the Veteran's VA treatment records relating to his low back condition dated from January 2002 through December 2004, as well as any recent treatment records dated from July 2008 to present, and to associate them with the claims file. See Dunn v. West, 11 Vet. App. 462, 466-467 (1998) (Records created by VA are considered constructively part of the record and should be associated with the claims file); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a new compensation and pension audiological examination to determine the nature and etiology of the Veteran's claimed hearing loss disability. The claims folder should be provided to the examiner for review in conjunction with the examination. After reviewing the file, and conducting a thorough audiological examination, and identifying the nature of the Veteran's hearing loss, the examiner should render an opinion as to whether it is at least as likely as not that the Veteran's current hearing loss disability was caused by or aggravated during his service in the Army National Guard from November 1981 to February 2003, taking into account his active duty for training from January 1982 to May 1982, any periods of active or inactive duty exercises as a mortar man over the next two decades, and his active duty from October 2001 to September 2002. The VA examiner should provide a comprehensive report including a complete rationale for all opinions and conclusions. If the VA examiner concludes that the Veteran's hearing loss was not caused by or aggravated during service in the Army National Guard or the Army, the examiner must explain, in detail, the reasoning behind this determination. 2. Obtain all VA treatment records relating to the Veteran's low back dated from January 2002 through December 2004, and from July 2008 to present, from the VA medical center located in Lexington, Kentucky, and from the VA outpatient clinic located in Somerset, Kentucky, and associate them with the claims file. If these records are found to be unavailable, this should be specifically noted in the claims file. 3. Once the aforementioned development is complete, as well as any additional development deemed necessary, readjudicate the Veteran's claim. If either of the Veteran's claims remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran has been given the applicable time to submit additional argument, the claim(s) should be returned to the Board for further review. 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). 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. 2009). _________________________________________________ MICHAEL LANE 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) (2009).