Citation Nr: 1310202 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 08-12 971A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and observer ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1971 to November 1972. The Veteran is in receipt of several decorations which are indicative of combat service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for bilateral hearing loss in a June 2007 rating decision and denied service connection for a cervical spine disorder in a July 2007 rating decision. In October 2009, a hearing was held before the undersigned Veterans Law Judge. A copy of the transcript of this hearing has been associated with the claims file. The Board denied service connection for bilateral hearing loss and remanded the claim for service connection for a cervical spine disorder for further development in a January 2010 decision and remand order. The Veteran appealed the Board's denial of entitlement to service connection for hearing loss to the Court of Appeals for Veterans Claims (Court), which, in an April 2011 Order granting a Joint Motion for Remand, vacated the Board's January 2010 decision and remanded the Veteran's claim to the Board for action consistent with the Joint Motion. In September 2011, the Board remanded the Veteran's claims for additional development pursuant to the April 2011 Order and Joint Motion. The Veteran raised the issue of entitlement to an earlier effective date for his service-connected posttraumatic stress disorder (PTSD) and skin disorder in a February 2008 statement and at his October 2009 Board hearing. He contends that no action was ever taken with regard to these claims. As these earlier effective date issues have not been addressed by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them. Consequently, the Veteran's earlier effective date claims are referred to the AOJ for appropriate action. 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 Unfortunately, additional development is still required before the Board can properly adjudicate the Veteran's claims. In October 2011, in accordance with the Board's September 2011 remand order, the Veteran was provided with a VA audiological examination and a VA spine examination and etiological opinions were obtained from the examiners. However, the opinion provided in the October 2011 VA audiological examination report is contradictory. The examiner found that (1) the Veteran's hearing loss was not related to service, (2) the Veteran's tinnitus is a symptom associated with his hearing loss, and (3) the Veteran's tinnitus was caused by noise exposure in service. In other words, the opinion provided for hearing loss found it was not related to service, but the opinion provided for tinnitus appears to link hearing loss, and tinnitus, to noise exposure in service. On remand, a supplemental opinion should be obtained from the October 2011 VA examiner that resolves the apparent contradiction. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). There are also defects with the October 2011 VA spine examination report that must be corrected before adjudication can proceed on this issue. The examiner provided the opinion that the Veteran's cervical condition was not likely caused by active duty on the basis that his diagnosed disorder, degenerative cervical disc disease, is not the type of spine disorder acquired as a result of physical trauma, like the fall the Veteran experienced during his active service in Vietnam. However, a February 2007 x-ray report, included in the October 2011 VA examination report, also shows findings of degenerative disc disease, degenerative joint disease, and "minimal posterior subluxation, C4." A subluxation is an "incomplete or partial dislocation." See Dorland's Illustrated Medical Dictionary 1817 (28th ed. 1994). Therefore, a supplemental medical opinion must be obtained from the October 2011 VA spine examiner that adequately addresses the subluxation noted on the February 2007 x-ray report, in addition to his degenerative conditions. See Barr, 21 Vet. App. 312; Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Additionally, the record contains an October 2009 statement from the Veteran's private chiropractor, Kimberly Alters, establishing that the Veteran received periodic treatment for a "chronic neck condition" for the last twenty years. Information relating to the date of onset of the Veteran's currently diagnosed cervical spine disorders is central to the resolution of the Veteran's claim. However, the general description of "chronic neck condition" used by the Veteran's chiropractor unfortunately lacks sufficient diagnostic clarity to establish a history of chiropractic treatment for those specific disorders. When private medical evidence reasonably appears to contain information necessary to properly decide a claim but is "unclear" or "not suitable for rating purposes," and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to either (1) ask the private examiner to clarify the report, (2) request that the claimant to obtain the necessary information to clarify the report, or (3) explain why such clarification is not needed. Savage v. Shinseki, 24 Vet. App. 259, 269 (2011). Therefore, on remand, the Veteran should be contacted and asked to obtain a supplemental statement from his chiropractor clarifying what specific neck disorders were treated over that twenty year period described in the October 2009 statement in order to assist the Board in determining whether the chronic neck condition the chiropractor treated twenty years ago is the same or related to his currently diagnosed degenerative disc disease, degenerative joint disease, subluxation, and/or any other diagnoses established during development of the record. Lastly, an effort should be made to obtain any additional VA treatment records for the Veteran showing treatment for hearing loss or a cervical spine disorder, dated since October 2011. 38 U.S.C.A. § 5103A(b)(3) (West 2002 & Supp. 2012), (c)(2); 38 C.F.R. § 3.159(c)(2), (3) (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's outstanding VA health treatment records, related to his hearing loss or cervical spine disorder, from the VA Outpatient Clinic in Ft. Myers, Florida and any private records from Kimberly Alters. All information which is not duplicative of evidence already received should be associated with the claims file or the Veteran's electronic claims folder. 2. Contact the Veteran and ask him to obtain and submit a supplemental statement from his chiropractor clarifying what specific diagnosed cervical spine disorders were treated over the twenty year history of treatment described in the October 2009 statement. 3. Then, request an addendum to the October 2011 VA spine examination report from the same examiner who conducted the October 2011 spine examination, if possible. If the same examiner is not available, a different examiner should be asked to review the claims folder and provide the requested opinion. The examiner is asked to review the February 2007 x-ray report data included in the October 2011 examination report and to fully explain why this report shows degenerative disc disease, degenerative joint disease, and minimal posterior subluxation of C4, but the only diagnoses provided by the examiner are listed as "cervical pain" and "cervical disc disease." Additionally, the examiner should determine whether the x-ray evidence of minimal posterior subluxation of C4 constitutes evidence indicating that the Veteran's cervical spine disorder is related to physical trauma, like the fall the Veteran sustained in service when he was knocked into a deep hole on the side of a mountain by an explosion. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If any requested information cannot be provided without resort to speculation, indicate whether the inability to provide a definitive opinion is due to a need for further information, because the limits of medical knowledge have been exhausted, or for some other reason. 4. Request an addendum to the October 2011 VA audiological examination report from the same examiner who conducted the October 2011 VA audiological examination, if possible. If the same examiner is not available, a different examiner should be asked to review the claims folder and provide the requested opinion. In the October 2011 examination report, the examiner found that it was less likely than not that the Veteran's hearing loss was due to noise exposure in service, but then found that tinnitus was associated with hearing loss and due to service. These opinions appear to contradict one another. Please correct or clarify the opinions provided to resolve the apparent contradiction. Also, the explanation provided for the opinion that hearing loss is less likely than not related to service mentioned that the Veteran's hearing at the time of discharge was 15 to 20 decibels poorer than it was at enlistment at nearly all frequencies. The report explains that this pattern was not consistent with noise exposure, where hearing loss is limited to or greater at higher frequencies, but did not explain the cause of the 15 to 20 decibels of hearing loss the Veteran, according to the examiner, did experience during service. Therefore, please discuss the cause of the 15 to 20 decibels of hearing loss seen at nearly all frequencies from entry into service to discharge from service and state whether it is at least as likely as not (50 percent or greater probability) that this apparent reduction in hearing is related to the Veteran's current hearing loss disability. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If any requested information cannot be provided without resort to speculation, indicate whether the inability to provide a definitive opinion is due to a need for further information, because the limits of medical knowledge have been exhausted, or for some other reason. 5. Review the medical examination reports obtained to ensure that the remand directives have been accomplished, and return the case to the examiner(s) if all questions posed are not answered. 6. Finally, readjudicate the claims on appeal. If any claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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. 2012). _________________________________________________ K. Parakkal 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).