Citation Nr: 1310339 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 10-23 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for numbness of the bilateral feet, claimed as secondary to service-connected degenerative arthritis of the lumbar spine. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from January 1965 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated November 2008 and August 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the Veteran's claims. In August 2011, the Board remanded the Veteran's claims in order to afford him a hearing before a Veterans Law Judge. In April 2012, the Veteran withdrew his request for a hearing pursuant to 38 C.F.R. § 20.704(e). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. The issues on appeal are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND For the reasons set forth below, the Board finds that the issues on appeal must be remanded for further development. Here, the Veteran contends that he suffers from numbness of the feet that is secondary to his service-connected degenerative arthritis of the lumbar spine. He also asserts entitlement to service connection for bilateral hearing loss and tinnitus, which he claims are due to his military service. As to the numbness of the feet claim, service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2012); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 1 Vet. App. 509, 512 (1998). In this matter, it is undisputed that the Veteran is currently service-connected for degenerative arthritis of the lumbar spine. See the rating decision dated October 2005. With respect to current disability, the Veteran has repeatedly asserted that he suffers from numbness of the bilateral feet. See, e.g., the Veteran's claim dated September 2008. The symptoms are noted in VA treatment records dated July 2009, which also document sensory level paresthesia on the bottom of the feet, left greater than right. The Veteran was afforded a VA examination in April 2010 at which time, the examiner noted that "[s]ensory is decreased temperature in a portion of the left L4 and S1 distributions. Pin prick sensation is decreased in a portion of the left L5 distribution. Reflexes trace to 1+ and =. Straight leg raise is negative." The examiner further noted that magnetic resonance imaging (MRI) of the lumbar spine shows "minimal narrowing of L4-5 and significant narrowing of the L5-S1 disk spaces, hypertrophic facet arthropathy at all lumbar levels, L4-5 extradural defect centrally and to the right with severe spinal stenosis and right foramina encroachment, L5-S1 extradural defect centrally causing minimal spinal stenosis." The examiner then opined that the Veteran "has conflicting subjective sensory loss in the left leg that are non-physiological. In addition, they do not correlate with the anatomy on MRI which would suggest right sided rather than left sided symptoms. As such, I can only tie his subjective left lower extremity mild incomplete sensory loss to the lumbar spine by speculating." Critically, the April 2010 VA examiner did not specifically address the question of whether the Veteran currently has a diagnosed neurological disability of the bilateral feet manifested by numbness which is proximately due to, the result of, or aggravated by, his service-connected degenerative arthritis of the lumbar spine. Accordingly, there remain questions as to diagnosis and etiology of the Veteran's claimed numbness of the bilateral feet. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim) and Colvin v. Derwinski, 1 Vet. App. 191, 195 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Accordingly, a remand for a new VA examination should be accomplished in order to address these outstanding questions. With respect to the bilateral hearing loss and tinnitus claims, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For VA compensation purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. 38 C.F.R. § 3.385 & Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As to a current disability, the Veteran has asserted that he suffers from bilateral hearing loss and tinnitus. See the Veteran's claim dated March 2010. A VA audiology examination dated in July 2010 revealed mild to severe bilateral sensorineural hearing loss and tinnitus. The puretone thresholds and speech recognition scores documented by the VA examiner were sufficient to establish a bilateral hearing loss disability for VA compensation purposes. See 38 C.F.R. § 3.385. With respect to in-service injury or disease, the Veteran's service personnel records and DD-214 indicate that he served under the military occupational specialty (MOS) of missile crewman. The Board has no reason to disbelieve the Veteran's contentions concerning the in-service noise exposure as secondary to his MOS. Thus, in-service acoustic trauma is conceded for the purpose of this remand. With respect to the question of medical nexus, the July 2010 VA audiological examiner concluded only that "[t]he etiology of the tinnitus cannot be determined without resorting to mere speculation." As to the bilateral hearing loss, the examiner stated, "[a]s there was some history of occupational noise exposure, as he left the military in 1968 and as there is no audiological data at discharge, this audiologist is unable to determine whether or not noise exposure in the military had any negative impact on his hearing without resorting to mere speculation." Although it addresses the issue of nexus, the opinion of the July 2010 VA audiological examiner is admittedly speculative and provides little rationale to support the conclusions rendered. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence). A review of the examination report shows that the examiner did not obtain a thorough medical history from the Veteran with respect to the claimed bilateral hearing loss and tinnitus. The July 2010 VA examiner also failed to consider the Veteran's competent reports of hearing loss and tinnitus dating from his military service. To this end, the Board notes that the absence of evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley, 5 Vet. App. at 159. Additionally, the Court more recently held in Jones v. Shinseki, 23 Vet. App. 382 (2010) that in order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. As indicated above, the July 2010 VA examiner's opinion provided incomplete rationale, and there is no other competent medical opinion of record that addresses the issue of medical nexus. Accordingly, there remains a question of whether the Veteran's currently diagnosed bilateral hearing loss and tinnitus were caused or aggravated by his military service; a new VA examination is therefore warranted. See Charles, supra; see also 38 C.F.R. § 3.159(c)(4) (2012) and Colvin, supra. In rendering an opinion as to medical nexus, the examiner should obtain a complete medical history from the Veteran with respect to his audiological complaints to include any post-service audiological treatment as well as details of his occupational noise exposure. Additionally, review of the record reflects ongoing VA medical treatment. Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran's claims file. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate releases where necessary, procure any records of outstanding treatment and/or evaluation that the Veteran has recently received. The Board is particularly interested in VA treatment records from the VA medical center in Jackson, Mississippi, dating from October 2011. All such available documents should be associated with the claims file. 2. Thereafter, schedule the Veteran for a VA examination with a medical professional of appropriate expertise to determine the nature and etiology of any neurological disability affecting the bilateral feet manifested by numbness. The claims file, including a copy of this Remand, must be made available to the examiner for review in connection with the examination. All pertinent pathology should be annotated in the examination report. Pertinent testing deemed necessary should be accomplished, and the results of any such studies should be included in the examination report. Following review of the claims file and examination of the Veteran, the examiner should either diagnose or rule out a neurological disability of the bilateral feet. If a neurological disability of the feet is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the feet disability was caused or aggravated (permanently worsened beyond natural progression) by the Veteran's service-connected disabilities to include degenerative arthritis of the lumbar spine. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. Then, schedule the Veteran for a VA audiological examination to determine the etiology of his currently diagnosed bilateral hearing loss and tinnitus. The claims file, including a copy of this Remand, should be made available to and reviewed by the examiner. All necessary studies, including audiological testing, should be performed. Specifically, the audiologist is requested to identify auditory thresholds, in decibels, at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. The examiner should obtain a complete history of the Veteran's audiological complaints. The examiner should then opine as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the currently diagnosed bilateral hearing loss and tinnitus had their onset in service or are otherwise related to the Veteran's military service, to include the conceded noise exposure. The medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since service should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 4. Thereafter, readjudicate the claims on appeal. If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran 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). 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 (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). _________________________________________________ J. A. MARKEY 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) (2012).