Citation Nr: 0814347 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 05-11 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for numbness of the left leg, secondary to a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Simone C. Krembs, Associate Counsel INTRODUCTION The veteran served on active duty from June 1972 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) from October 2004 and July 2006 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that respectively denied the veteran's claims of entitlement to service connection for a low back disability, a left leg disability, secondary to the low back disability, and bilateral hearing loss. In October 2007, the veteran testified before the Board at a hearing that was held at the RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND Additional development is needed prior to further disposition of the claims. First, it appears that additional treatment records are outstanding. In October 2007 testimony before the Board, the veteran reported that he first sought clinical treatment for his low back disability at the VA medical facility in Oklahoma City, Oklahoma, within one year of his separation from service. These records have not yet been obtained. Because these may include records that are pertinent to the veteran's claims, they are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2007); Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, in October 2007 testimony before the Board, the veteran stated that he was receiving ongoing treatment for his low back and left leg from two different private physicians. While treatment records from these physicians respectively dated from March 2004 to June 2004, and from February 2005 to December 2005 have been associated with the record, it appears that there are additional treatment records that have not yet been obtained. As these records are pertinent to the veteran's claims for service connection for a lumbar spine disability and for a left leg disability secondary to the low back disability, they are relevant and should be obtained. Next, VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2007); Robinette v. Brown, 8 Vet. App. 69 (1995). The record reflects that the veteran has been service- connected for tinnitus that developed as a result of acoustic trauma in service. He asserts that his current bilateral hearing loss developed as a result of the same acoustic trauma sustained in service. On examination conducted on behalf of VA in July 2006, the veteran was diagnosed with bilateral sensorineural hearing loss. However, the severity of his hearing loss was such that it did not comport with VA's criteria for consideration as a disability. See 38 C.F.R. § 3.385 (2007). Accordingly, his claim of entitlement to service connection for bilateral hearing loss was denied. However, in October 2007 testimony before the Board, the veteran and his spouse asserted that his hearing loss had worsened since the date of the July 2006 examination. As the record reflects that the veteran experienced acoustic trauma in service and that his hearing loss may now be of a level of severity that comports with VA's criteria for consideration as a disability, the Board finds that a remand for an additional examination is necessary in order to determine whether the veteran's hearing loss meets the criteria for service connection. With regard to his claim of entitlement to service connection for a low back disability, the veteran's service medical records are silent as to complaints or diagnoses of a low back disability. The veteran, however, is competent to report the incurrence of a low back injury in service, as that injury is capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board additionally finds the veteran's testimony in this regard to be credible. To date, no medical professional has opined as to the relationship between the current low back disability and the veteran's period of active service. However, the veteran has not yet been afforded a VA examination. Accordingly, it remains unclear to the Board whether the veteran's current low back disability is related to the injury sustained in service. As a VA examiner has not yet had the opportunity to review the veteran's claims file and render an opinion as to whether the veteran's current low back disability is related to an injury sustained in service, and such a relationship is unclear to the Board, the Board finds that a remand for an examination and etiological opinion is in order. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file records from the VA Medical Center in Oklahoma City, Oklahoma dated from December 1974 to the present. If these records are no longer on file, a request should be made to the appropriate storage facility. All efforts to obtain VA records should be fully documented, and the VA facilities must provide a negative response if records are not available. 2. After obtaining the necessary authorization from the veteran, obtain and associate with the claims file records from the veteran's private physicians, Arthur Conley, M.D., at Oklahoma Sports Science and Orthopaedics, and Vatsala N. Shah, M.D., at 721 N.W. Sixth St, Suite A, Oklahoma City, Oklahoma, dated from June 2004 to the present. 3. Schedule the veteran for a VA audiological examination for the purpose of ascertaining the nature, extent, and etiology of his hearing loss. The claims folder should be made available to the examiner for review in conjunction with the examination. All appropriate testing, including an audiological evaluation, shoulder be completed. Based upon a review of the claims folder, the examiner should provide an opinion as to whether it is as likely as not (50 percent probability or greater) that any currently diagnosed sensorineural hearing loss is causally related to his period of active service, including exposure to hazardous noise. The examiner should take into account the veteran's lack of a significant history of post-service noise exposure, and specifically address any reasons why his tinnitus may be presumed to be the result of acoustic trauma in service but his current hearing loss may not. All opinions expressed by the examiner should be accompanied by a complete rationale. 4. Schedule the veteran for an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed low back and left leg disabilities. All appropriate testing, including radiographic studies, should be completed. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should specifically opine as to whether it is as likely as not (50 percent probability or greater) that any currently diagnosed low back disability is related to the alleged injury sustained in service. In this regard, the examiner should consider the veteran's statements regarding the incurrence of the low back disability, in addition to his statement regarding the continuity of symptomatology, as well as the lay statements provided by the veteran's spouse regarding the incurrence of the injury and the continuity of symptomatology. The examiner should also provide an opinion as to the approximate date of onset of any currently diagnosed low back disability. Further, the examiner should opine as to whether it is as likely as not (50 percent probability or greater) that any diagnosed left leg disability is related in any way to, or is aggravated by, any currently diagnosed low back disability. The rationale for all opinions must be provided. 5. Then, readjudicate the veteran's claims of entitlement to service connection bilateral hearing loss, a low back disability, and for numbness of the left leg (asserted to be secondary to the low back disability). If the decisions remain adverse to the veteran, issue a supplemental statement of the case. 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 matters the Board is remanding. 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action (CONTINUED ON NEXT PAGE) must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ THERESA M. CATINO Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).