Citation Nr: 1237255 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-22 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a low back disability, to include degenerative changes of the lumbar spine. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a skin condition, to include as secondary to herbicide exposure, specifically Agent Orange. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Detroit, Michigan Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of this appeal, by a May 2009 rating decision, the RO granted the Veteran's claim for service connection for anxiety disorder, not otherwise specified, with symptoms of posttraumatic stress disorder (PTSD) and sleep difficulties, thereby constituting a full grant of the benefits sought on appeal. Thus, as this issue was granted in full it is not in appellate status before the Board and need not be addressed further. In the Veteran's June 2009 VA Form 9, he stated that he accepted the noncompensable rating for his residual scar of the back. Therefore, this issue is also not in appellate status before the Board and need not be addressed further. In June 2011, the Board denied the claim for service connection for a low back disability, to include degenerative changes of the lumbar spine, and remanded the other three issues on appeal for additional development. The Veteran appealed the Board's decision which denied service connection for a low back disability, to include degenerative changes of the lumbar spine, to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR) filed by the parties, the Court remanded the issue of service connection for a low back disability, to include degenerative changes of the lumbar spine, to the Board for further adjudication consistent with the JMR in December 2011. In April 2012 the Board remanded the issue of service connection for a low back disability, to include degenerative changes of the lumbar spine, for additional development. 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 Although the Board regrets any further delay in adjudicating the Veteran's claims, pursuant to the duty to assist, the issues of service connection for a low back disability, to include degenerative changes of the lumbar spine, bilateral hearing loss, tinnitus and a skin condition, to include as secondary to herbicide exposure, specifically Agent Orange, must be remanded for further development. Low Back Disability In the April 2012 remand, the Board instructed the RO, via the AMC, to forward the claims file to the VA examiner who provided the September 2007 VA spine examination and December 2007 addendum. The Board's remand instructions asked the examiner to provide a supplemental opinion as to whether it is at least as likely as not that the Veteran's degenerative changes of the lumbar spine, diagnosed on examination in September 2007, are etiologically related to service, to include multiple fragment wounds of the back sustained in May 1967. The examiner was also asked to consider the Veteran's assertions of continuity of low back symptomatology from service to the present as potentially supporting the presence of a chronic disability from service to the present, even in the absence of corroborating medical evidence of such chronicity over time, and even where there is a long interval of time without treatment for a low back disability. A supplemental opinion was provided in May 2012 in which the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In his rationale, the examiner explained that multiple fragment wounds in the back were a superficial soft tissue condition and that there was no back treatment after the initial treatments. He also concluded that degenerative changes in the spine were of more recent findings made by different conditions and that such changes were gradual and now consistent with the Veteran's age. Finally, the examiner found that it was his best judgment that the Veteran's current low back disability did not originate in service. In a September 2012 statement, the Veteran reported that the VA examiner failed to comply with the Board's remand instructions and specifically noted that the examiner failed to address the lay statements of a continuity of symptoms and had reported in his rationale that there was no back treatment after the initial treatments. Once VA undertakes the effort to provide an examination with respect to a claim of entitlement to service connection, whether or not statutorily obligated to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate when it contains clear conclusions with supporting data and a reasoned medical explanation or analysis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, in considering that it does not appear that the VA examiner considered the Veteran's lay statements of a continuity of symptoms per the Board's previous remand instructions, the case must be remanded for additional development to include a supplemental medical opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 U.S.C.A. § 5103A (West 2002). Bilateral Hearing Loss and Tinnitus In the Board's June 2011 decision and remand, the Board remanded the Veteran's claims for service connection for bilateral hearing loss and tinnitus for a VA examination with an opinion. Specifically, the examiner was asked to address whether or not the Veteran's current hearing loss was more likely than not, at least as likely as not, or less likely than not related to his military service and to provide a thorough rationale for his or her conclusion and confirm that the claims file was available for review. In an August 2011 VA examination, the examiner found that it was less likely than not that hearing loss was caused by or a result of the Veteran's military service and it followed that tinnitus was not caused by noise exposure in service. He also concluded that he would be "speculating that tinnitus could be caused by explosions and not cause measureable hearing loss or threshold changes." Finally, the examiner concluded that it was at least as likely as not that tinnitus was a symptom associated with the hearing loss. The Veteran submitted a medical treatise article entitled, "Noise and Military Service: Implications for Hearing Loss and Tinnitus." In the article the Veteran highlighted information he felt was relevant to his case, including discussion that impulse noise may be hazardous even within a single exposure. This article also indicated that, while a conclusion that it was unlikely that delayed effects of noise on hearing loss occurred, there was insufficient evidence to determine the probability of acquiring noise induced hearing loss or to estimate the magnitude of the noise induced hearing loss that a specific individual was likely to experience from given noise exposure. In addition, the Veteran pointed to the article's language regarding tinnitus which stated that tinnitus could occur after a single exposure to high intensity impulse noise and that a "more complete understanding of the mechanisms by which tinnitus was generated [would] be necessary before the existence of [the] delayed onset of noise-induced tinnitus [could] be confirmed or rejected." Once VA undertakes the effort to provide an examination with respect to a claim of entitlement to service connection, whether or not statutorily obligated to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate when it contains clear conclusions with supporting data and a reasoned medical explanation or analysis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, in considering that the Veteran's DD form 214 reflects that his military occupational specialty was that of a combat engineer, he is currently diagnosed with hearing loss and tinnitus and since the last VA examination and opinion in August 2011 he has provided a medical treatise article entitled, "Noise and Military Service: Implications for Hearing Loss and Tinnitus," the case must be remanded for additional development to include obtaining a supplemental medical opinion. Skin Condition In the Board's June 2011 decision and remand, the Board remanded the Veteran's claim for service connection for a skin condition for a VA examination with an opinion. Specifically, the examiner was asked to address whether the Veteran's skin condition, specifically the residual scar from removal of basal cell carcinoma, was more likely than not, at least as likely as not, or less likely than not, related to his military service or his exposure to herbicides, specifically Agent Orange, while on active duty. The examiner was also asked to provide a thorough rationale for his or her conclusion and confirm that the claims file was available for review. In a July 2011 VA examination of the skin, the Veteran was diagnosed with status post excision of skin cancer from the right side of the face, remote, by history. The VA examiner then opined that basal cell carcinoma was not listed under the presumptive conditions caused by exposure to Agent Orange and that a history of basal cell carcinoma was not related to military service or from Agent Orange exposure. The examiner then reported his rationale included a review of medical records, literature, history and examination. The examiner did not however provide any explanation or reasons for her opinion beyond citing to the information she reviewed. Thus, an adequate rationale has not been provided. Once VA undertakes the effort to provide an examination with respect to a claim of entitlement to service connection, whether or not statutorily obligated to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate when it contains clear conclusions with supporting data and a reasoned medical explanation or analysis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, in considering that it does not appear that the VA examiner provided an adequate rationale for her conclusions per the Board's previous remand instructions, the case must be remanded for additional development to include a supplemental medical opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 U.S.C.A. § 5103A (West 2002). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should arrange for the claims file to be forwarded to the VA examiner who last provided the May 2012 VA opinion regarding the low back disability, or, if this examiner is not available, the claims filed should be forwarded to a similar specialist, to review the claims file. The claims file, to include a copy of this remand, must be made available prior to completion of the evaluation. The examiner must annotate the examination report to indicate review of pertinent evidence in the claims file. (Please note the Veteran's lay statements of a continuity of symptoms since service are competent evidence). The examiner is then asked, to furnish an opinion with respect to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed low back disability: (i) had its onset during his period of active duty from August 1966 to August 1968; or, (ii) that such disorder was caused by any incident or event that occurred during such period (i.e. incident resulting in shrapnel wounds)? Please explain the reasons for any opinions rendered and include a discussion of the relevant evidence. In particular, the examiner is asked to address the Veteran's competent lay statements of a continuity of symptoms since his active service in the rationale. Note: The term "at least as likely as not" does not mean merely 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 causation as it is to find against it. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 2. The AMC/RO should arrange for the claims file to be forwarded to the VA examiner who last provided the August 2011 VA opinion of the Veteran's bilateral hearing loss and tinnitus, or, if this examiner is not available, the claims filed should be forwarded to a similar specialist, to review the claims file. The claims file, to include a copy of this remand, must be made available prior to completion of the evaluation. The examiner must annotate the examination report to indicate review of pertinent evidence in the claims file. (Please review and note the medical treatise article entitled, "Noise and Military Service: Implications for Hearing Loss and Tinnitus"). The examiner is then asked, to furnish an opinion with respect to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed bilateral hearing loss and tinnitus: (i) had their onset during his period of active duty from August 1966 to August 1968; or, (ii) that such disorders were caused by any incident or event that occurred during such period (i.e. noise exposure)? Please explain the reasons for any opinions rendered and include a discussion of the relevant evidence. In particular, the examiner is asked to address the medical treatise article entitled, "Noise and Military Service: Implications for Hearing Loss and Tinnitus" in the rationale and discuss whether this changes his earlier opinion with reasons as to why or why not. Note: The term "at least as likely as not" does not mean merely 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 causation as it is to find against it. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 3. The AMC/RO should arrange for the claims file to be forwarded to the VA examiner who last provided the July 2011 VA opinion of the Veteran's skin condition, specifically the residual scar from removal of basal cell carcinoma, or, if this examiner is not available, the claims filed should be forwarded to a similar specialist, to review the claims file. The claims file, to include a copy of this remand, must be made available prior to completion of the evaluation. The examiner must annotate the examination report to indicate review of pertinent evidence in the claims file. The examiner is then asked, to furnish an opinion with respect to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed skin condition, specifically the residual scar from removal of basal cell carcinoma: (i) had its onset during the his period of active duty from August 1966 to August 1968; or, (ii) that such disorder was caused by any incident or event that occurred during such period (i.e. exposure to Agent Orange)? Please explain the reasons for any opinions rendered and include a discussion of the relevant evidence. In so doing, the examiner is asked to provide an explanation for his/her conclusions beyond solely referring to the evidence that was reviewed. Note: The term "at least as likely as not" does not mean merely 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 causation as it is to find against it. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 4. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO should determine whether the examiners have responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 5. After the requested development has been completed, the AMC/RO should readjudicate the merits of the Veteran's claim based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and his representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. 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. 2011). _________________________________________________ S. L. Kennedy 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) (2012).