Citation Nr: 1300563 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-15 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease and degenerative joint disease of the lumbar spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sara Schinnerer, Associate Counsel INTRODUCTION The Veteran had active service from September 1960 to October 1963. These matters are before the Board of Veterans' Appeals (Board) on appeal from December 2007 and July 2009 rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO) in Huntington, West Virginia. The Veteran was scheduled for a hearing before the Board in November 2012, but failed to appear for such hearing without explanation. He has not requested that the hearing be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.702 (2012). REMAND The Board is of the opinion that additional development is required before the Veteran's claims are decided. Specifically, examinations are necessary, for the reasons discussed below. Further, the Veteran's VA outpatient treatment records must be obtained and associated with the record. The Veteran contends that his bilateral hearing loss had its onset during service as a result of exposure to acoustic trauma, to include his service as an artilleryman, where he was exposed to rocket launchers, 105 Howitzers, and machine guns. He further contends that he was exposed to helicopter and aircraft noise due to his service as a paratrooper. Another opinion is needed to determine whether the Veteran's current bilateral hearing loss disability had its onset in service or is etiologically related to service, as the November 2007 VA opinion is not adequate for adjudicative purposes. Specifically, such opinion was based only on a determination that the Veteran had normal hearing at induction and separation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Hensley v. Brown, 5 Vet. App. 155 (1993). The examiner failed to comment on the fact that, while the Veteran's hearing was normal as defined by VA at the time of discharge, it had worsened since entry into service. See January 1961 examination report and September 1963 separation physical examination report (the separation examination report shows a significant threshold shift at 4000 Hertz, bilaterally). The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley, 5 Vet. App. 155 (1993). Accordingly, a new medical examination is necessary. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Regarding his service-connected lumbar spine disability, in a January 2012 statement, the Veteran reported that such disability had worsened. Specifically, he indicated that he had several problematic discs with spurs. Further, during several of the most recent VA examinations, the Veteran complained of radiating pain from his low back to his left lower extremity, and into his foot. See June 2010, January 2011, and March 2011 VA examination reports. Moreover, while the January 2011 and March 2011 examination reports indicate that the Veteran had decreased sensation to light touch on the plantar surface of his left lower extremity, there was no noted neurological diagnosis. See January 2011 and March 2011 VA examination reports. Given the Veteran's credible assertion of increased symptomatology subsequent to the aforementioned examinations, and the need for clarification regarding whether the Veteran has a current left lower extremity radiculopathy condition, and if so, whether it is associated with his lumbar spine disability, another VA examination is necessary to assess all of the orthopedic and neurological manifestations attributable to the Veteran's service-connected lumbar spine disability. Finally, in the aforementioned January 2012 statement, the Veteran also reported that he was receiving treatment for his back disability at the VA Medical Center (VAMC) in Clarksburg, West Virginia; specifically, he asserted that he underwent an MRI approximately six weeks ago. The most recent VA outpatient treatment record within in the claims file is dated in July 2011, and Virtual VA contains treatment records dated from March 2012 to September 2012. Thus, records dated from July 2011 through February 2012, and from September 2012 to the present have not been associated with the claims file. Given that such records could be relevant to the issues on appeal, the Board must return the case to obtain these records. See Bell v. Derwinski, 2 Vet.App. 611 (1992). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Take all appropriate action necessary to obtain all treatment records from the VAMC at Clarksburg, West Virginia from July 2011 to the present. 2. Thereafter, afford the Veteran a VA audiological examination in order to determine the current nature and etiology of any hearing disability. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims must be made available to and reviewed by the examiner in conjunction with the examination. All indicated evaluations, studies, and tests deemed to be necessary must be accomplished. The examiner must answer the following questions: (a) Does the Veteran currently have bilateral hearing loss? (b) If the answer is yes, is it at least as likely as not that any currently diagnosed disability had its onset in service or is related to any in-service disease, event, or injury. The examiner must accept as fact that the Veteran was exposed to acoustic trauma during service. The examiner must also comment on the Veteran's January 1961 examination report and his September 1963 separation physical examination report. Specifically, the examiner must address the Veteran's threshold shift at 4000 Hertz, bilaterally, which is demonstrated on his separation examination report. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Afford the Veteran an appropriate VA examination in order to determine the current nature and severity of all manifestations of his service-connected lumbar spine disability, to include any neurological manifestations. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims must be made available to and reviewed by the examiner in conjunction with the examination. All indicated evaluations, studies, and tests deemed to be necessary must be accomplished. The RO or the AMC should ensure that the examiner provides all information required for rating purposes, to include specifying any and all neurologic symptoms (e.g., neuritis, neuralgia, sensory loss, body part dysfunction, etc.) with specific reference to the nerve(s) affected. The examiner must provide an opinion as to whether any neurological symptomatology equates to "mild," "moderate," "moderately severe" or "severe," incomplete paralysis or complete paralysis of any nerve. The examiner must specifically comment on whether the Veteran has a current left lower extremity radiculopathy condition, and in doing so, must consider the Veteran's reporting of subjective complaints of left lower extremity pain, as well as all of the objective medical evidence of record. If a left lower extremity radiculopathy condition is diagnosed, the examiner must provide an opinion as to the etiology of such diagnosis. If this is not feasible, the examiner must so state and provide an explanation as to why it is not feasible. 4. Undertake any other indicated development. 5. Then, readjudicate the Veteran's claims, to include consideration of whether a separate rating is warranted for neurological impairment due to the service-connected lumbar disability. If the benefits sough on appeal are not granted to the Veteran's satisfaction, he and his representative must be furnished a supplemental statement of the case and afforded the requisite period of time to respond. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Shane A. Durkin 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).