Citation Nr: 1309682 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 09-08 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a back disability, to include degenerative disc disease with facet arthropathy, spondylolisthesis, spondylosis, and disc protrusion. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Veteran served on active duty from May 1961 to January 1966. This case is before the Board of Veterans' Appeals on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the claims. In October 2012, the Veteran testified by videoconference at a Board hearing before the undersigned. A copy of the transcript is of record. During the hearing, the Veteran requested, and the undersigned granted, a 60-day abeyance period for submission of additional evidence in support of the claims. To date, no additional evidence has been received. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action on his part is required. REMAND The Veteran seeks service connection for bilateral hearing loss, tinnitus, and degenerative disc disease with facet arthropathy, spondylolisthesis, spondylosis, and disc protrusion. Before the Board can adjudicate these claims on the merits, additional development is required. I. Private Treatment Records At his October 2012 Board hearing, the Veteran testified that after service, he periodically saw private doctors about his back. See Board Hearing Tr. at 8. He noted that he began seeing some of these physicians as early as the 1960's, and identified them as Doctors G.S., D.B., W.P., and several chiropractors. See id. at 9. The Veteran also testified that he provided VA with authorization to obtain records from these providers, see id. at 8, however, the only authorization of record is one to obtain private treatment records from Dr. W.P. Records from Dr. W.P. were obtained by the AOJ. Records from Doctors G.S., D.B., and any chiropractors remain outstanding. As such records may be pertinent to the Veteran's claim, the AOJ should request that the Veteran provide VA Form 21-4142, Authorization and Consent to Release Information to VA, for treatment records from these providers. II. VA Examinations A. Bilateral Hearing Loss and Tinnitus In August 2006, the Veteran was afforded a VA examination in response to his claims for service connection for hearing loss and tinnitus. The Veteran was diagnosed with a hearing loss disability as recognized by VA for disability purposes. See 38 C.F.R. § 3.385 (2012). The examining audiologist opined that because testing at military separation showed normal hearing bilaterally, she did not think the Veteran's hearing loss disability or the "subjective tinnitus" was due to military service. At the October 2011 Board hearing, the Veteran testified that he noticed ringing in his ears in the military, and has suffered from this ringing since separation. See Board Hearing Tr. at 4. He also stated that prior to separation he noticed that he was having difficulty hearing. Id. at 3. The Veteran's service treatment records reflect that he was exposed to excessive noise in service and complained of ear pain and tinnitus in June and July 1962. The Board points out that a layperson is competent to report on matters observed or within his or her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Veteran is also competent to testify about observable symptoms or injury residuals, such as ringing in the ears. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, the Veteran is competent to report having continuous symptoms since service. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the rationale for the August 2006 VA examination is inadequate because the examining audiologist failed to take into consideration the Veteran's statements of in-service hearing loss and tinnitus symptoms and the continuance of such symptoms when providing her opinion. The United States Court of Appeals for Veterans Claims (Court) has held that a VA examination is inadequate where it ignores the claimant's statement of in-service incurrence. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Thus, on remand, a new examination should be provided to determine the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. B. Spine The Veteran was provided with a VA examination for his spine in January 2012. The examiner found that the Veteran's back disability was less likely than not incurred in or caused by service. He noted that the Veteran had only one complaint of back pain in the service in 1962 without indication of injury, and that he worked at a steel mill until 2002 when he sustained a work injury with resulting surgery. He further noted that there was no medical evidence that the Veteran continued to have back problems after he left service until his injury in 2002, instead finding that his lumbar problems were a direct result of his injury in 2002 and not caused by or a result of military service. The Veteran is competent to report on matters within his or her personal knowledge, such as post-service back pain or injury. See Layno, 6 Vet. App. at 470; Grottveit, 5 Vet. App. at 93. The Veteran has argued that he had problems with his back since service and prior to his work injury in 2002. Board Hearing Tr. at 7-8. The Veteran is competent to report having experienced back pain since service. See Charles, 16 Vet. App. at 370. The Veteran has also submitted a statement from his sister (who reported that the Veteran wrote to him while in service and told her that he injured his back), as well as from his ex-wife (who stated that the Veteran complained of back pain for many years since service). These laypersons are competent to report on such matters. See Layno, 6 Vet. App. at 470. The examiner, however, did not discuss or consider any of the lay statements of record in forming his opinion. In reviewing service-connection claims where a VA examination has been performed, the Board must make a determination as to whether the examination report is adequate to make a decision on the claim notwithstanding the fact that the Board may not have found the examination necessary in the first place. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). Here, for the aforementioned reasons, the Board finds the VA opinion for the spine to be inadequate. Therefore, on remand, a supplemental opinion should be provided to determine the nature and etiology of the Veteran's back disability. Accordingly, the case is REMANDED for the following actions: 1. With any needed assistance from the Veteran, obtain all treatment records relating to the Veteran's treatment with Doctors G.S. and D.B. and several chiropractors, as mentioned in his Board hearing. See Board Hearing Tr. at 9. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After completion of Step 1, schedule the Veteran for an examination to determine the nature and etiology of his bilateral hearing loss and tinnitus. The claims file, as well as any records contained in Virtual VA, should be made available to and be reviewed by the examiner in conjunction with the examination. All required tests should be performed, and the examiner should provide an opinion on the following questions: (a.) Is it at least as likely as not (50 percent or greater) that the Veteran's hearing loss disability is related to military service (to include in-service acoustic trauma related to airplane engine noise)? (b.) Is it at least as likely as not (50 percent or greater) that the Veteran's tinnitus is related to military service (to include in-service acoustic trauma related to airplane engine noise)? A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for each opinion rendered, and the examiner must consider the Veteran's statements of continuous symptoms of ringing in the ears and hearing problems since service. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completion of Step 1, forward the Veteran's claims file to the examiner who performed the January 2012 VA examination, or alternatively, an appropriate examiner, to determine the nature and etiology of his back disability. The claims file, as well as any records contained in Virtual VA, should be made available to and be reviewed by the reviewing clinician. After a full review of the claims file, to include any electronic records, the reviewing clinician should provide an opinion on the following question: Is it at least as likely as not (50 percent or greater) that the back disability is related to military service? A complete rationale must be provided for all opinions rendered, and the reviewing clinician should consider the Veteran's statements of continuous symptoms of back pain since service, as well as the lay statements of the Veteran's sister and ex-wife. If the reviewing clinician cannot provide any requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any of the benefits sought on appeal remain denied, in whole or in part, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. 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 for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (West Supp. 2012). _________________________________________________ M. SORISIO Acting 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).