Citation Nr: 1533207 Decision Date: 08/05/15 Archive Date: 08/11/15 DOCKET NO. 08-30 227A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a bilateral leg disability. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran, J.E., and C.E. ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from August 1972 to May 1975. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In May 2015, the Veteran and witnesses testified during a hearing before the undersigned Veterans Law Judge at the RO and a transcript of that hearing is of record. REMAND The Veteran, through written statements and testimony before the Board, asserts that he injured his back and legs in service. Specifically, he has stated that in 1973, while aboard ship, he was wiping down a switchboard when he was hit with 440 loads and it threw him and he came down on his back and legs. The Veteran testified that after service although he was in the hospital after a job injury, "it was the same injury, it was just aggravated." Service medical records show that on November 11, 1973 the Veteran was exposed to 440 volts from a switchboard. Physical examination revealed no evidence of entrance or exit burns. No other injuries were noted. The plan was for bed rest and watchful waiting. The Veteran was seen two days later and it was noted that he was still a "little shook up." Service medical records are negative for complaints, findings, or diagnosis of any back or bilateral leg conditions. In June 2015, a VA physician submitted a medical opinion which noted that the Veteran showed the physician records of an initial injury to the spine with an electrocution type injury and associated blast and falling injury dating to November 1973 while in the Navy. It was the opinion of the VA physician that the long term back/spine and leg symptoms it was at least as likely as not (at least a 50 percent probability) that those disabilities stemmed from or were rooted in the injury of that accident of November 1973. However no rationale was provided with that opinion and there was also no comment or discussion on the significance of any intervening post- service injuries. A review of the records shows that the Veteran sustained several post-service related injuries to the back and legs. A May 19, 1983, private medical record notes that the Veteran was a Marine civil service employee who injured his back originally in April when he lifted a heavy part of a tank. An October 1983 Palmyra Park Hospital record notes that the Veteran was previously admitted in March 1979 with back contusion, no residual. On September 20. 1983, the Veteran fell on the job and developed pain in the right knee. He was diagnosed with effusion of the right knee following trauma and traumatic arthropathy, right knee, rule out other pathology other than traumatic synovitis. March through May 1990 Hughston Orthopaedic clinic records note the Veteran had a history of problems in the back following a fall on a waxed floor at work in December 1988. He was also having some right knee problems. He continued to work on and off at the Marine Corps Base in Albany. A May 1992 Hughston Orthopaedic clinic record notes that the Veteran twisted and landed on his left knee back in March of "1928" while at work. He underwent left knee arthroscopy. Final diagnosis was left knee suprapatellar plica. In 1993, the Veteran sustained a right femur fracture following a motor vehicle accident. A September 1994 Hughston Clinic record notes that the Veteran had a new left knee problem after slipping while going down some stairs at work. At that time, he felt something pop in the left knee. The records also indicate workers compensation claims were filed, such as in a June 2001 letter from the United States Department of Labor stating that the Veteran was receiving compensation from the Office of Workers' Compensation Programs (OWCP) due to a work related injury of September 20, 1983. The Board notes that specific information as to any intervening injuries since active service and the medical evidence associated with any associated compensation and disability claims are pertinent to the issues on appeal. Thus, on remand, all available records pertaining to the Veteran are to be obtained from the appropriate state Workers' Compensation agency and the United States Department of Labor. In addition, a VA medical examination and opinion should be obtained that considers the entire evidence of record. 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2014) ; McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran also asserts that he has bilateral hearing loss due to excessive noise exposure in service from duties as a machinist mate aboard ships. He testified that he worked in the engine room without ear plugs, and was around steam turbine engines that were very high pitched. He testified that he noticed hearing loss not long after he was discharged from service, probably in 1976 or 1977. Service medical records note that the Veteran was seen in July 1973 with complaints of problems hearing. The impression was impacted cerumen. His May 1975 separation examination notes that the Veteran had chronic scarring of the left ear drum. The Board acknowledges that the Veteran's service medical records do not show a bilateral hearing loss disability during service. However, the absence of a hearing disability during service is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87 (1992). Service connection for a bilateral hearing loss disability may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran was provided a VA examination in January 2006 at which time the Veteran was not found to have a bilateral hearing loss disability for VA purposes by the standards of 38 C.F.R. § 3.385. However, in light of the fact that over 9 years have passed since the VA examination, the Board finds that the Veteran should be provided a new VA examination to determine if he has hearing loss for VA purposes pursuant to 38 C.F.R. § 3,385, and if so, to determine the etiology of any current bilateral hearing loss. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2) (West 2014); 38 C.F.R. § 3.159(c)(4) (2014). Accordingly, the case is REMANDED for the following actions: 1. Request the Veteran to provide sufficient information, and authorization, to obtain all outstanding evidence (to include both VA and non-VA medical records) not yet associated with the claims file, to include treatment for post-service work related and motor vehicle injuries. a) Specifically, the Veteran should be requested to provide authorization to obtain records from Palmyra Park Hospital from 1979 through the present. b) Request the Veteran to provide specific information as to any workers compensation claims related to the issues on appeal. Specifically, he should be asked to identify the employer and date of all claims, and whether they were filed with a state Workers' Compensation Board or with the United States Department of Labor Office of Workers' Compensation Program (OWCP). 2. Upon receipt of the above information and appropriate authorization, request a copy of any determinations associated with the Veteran's application for workers' compensation benefits (to include from the OWCP pertaining to a September 20, 1983 work related injury), and copies of all medical records underlying the determination. 3. Obtain all pertinent VA medical records, not yet associated with the claims file, and associate them with the claims file. 4. Then, schedule the Veteran for a VA examination to assess the etiology of any diagnosed bilateral leg and back disabilities. The examiner must review the claims file and must note that review in the report. All findings and conclusions should be supported by a rationale, and the examiner should reconcile the opinion with all other evidence of record, including post-service intervening injuries and the June 2015 favorable medical opinion. Specifically, the VA examiner's opinion should address whether it is as likely as not (50 percent probability or greater) that a bilateral leg or back disability first manifested in service or within a year after discharge, or is otherwise related to active service, to include the 1973 incident during service. In addition to the above, the examiner must consider the Veteran's lay statements that he hurt his legs and back as a result of the 1973 incident in service and that he had a continuity of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). If it is determined that there is another likely etiology for any back or bilateral leg disabilities, that should be stated. 5. Schedule the Veteran for a VA examination to determine whether he has bilateral hearing loss consistent with 38 C.F.R. § 3.385, and the etiology of any hearing loss. The examiner must review the claims file and must note that review in the report. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. A complete rationale for any opinion expressed should be provided. The examiner should provide the following: (a) Conduct audiology testing to determine whether the Veteran has bilateral hearing loss disability consistent with 38 C.F.R. § 3.385. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any current bilateral hearing loss disability is causally related to service or any incident of service, including exposure to acoustic trauma during service, notations of ear drum scarring in service, or exposure to electrical shock during service. If it is determined that there is another likely etiology for any bilateral hearing loss, that should be stated. The examiner should note that the absence of in-service evidence of a hearing disability is not always fatal to a service connection claim and should consider the Veteran's reports and lay statements regarding hearing loss in and after service. 6. Then, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).