Citation Nr: 1314770	
Decision Date: 05/03/13    Archive Date: 05/15/13

DOCKET NO.  09-32 167	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.  

2.  Entitlement to service connection for a left knee disorder.  

3.  Entitlement to service connection for a low back disorder.  


REPRESENTATION

Veteran represented by:	Virginia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. Woodward Deutsch, Counsel


INTRODUCTION

The Veteran served on active duty from February 1983 to January 1994.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, to which the claims file had been temporarily brokered for adjudication.  The claims file has since returned to the original jurisdiction of the RO in Roanoke, Virginia.

In August 2011, the Veteran testified at a Board hearing before the undersigned.  A transcript of the proceeding is of record.

In April 2012, the Board determined that new and material evidence had been received to reopen the Veteran's previously denied claims for service connection for left knee and low back disorders.  The Board then remanded those reopened claims, as well as the Veteran's original claim of service connection for hearing loss, to the agency of original jurisdiction (AOJ).  

While the Board also remanded the Veteran's claim for service connection for an acquired psychiatric disorder, this issue was subsequently resolved in an October 2012 rating action.  In that decision, the AOJ awarded service connection for an acquired psychiatric disorder, diagnosed as posttraumatic stress disorder with recurrent major depression, and assigned disability ratings of 30 percent, effective January 8, 2008, and 70 percent, effective June 6, 2012.  The Veteran has not expressed disagreement with either the effective date of service connection or the ratings assigned for that disability, nor has she otherwise expressed disagreement with the October 2012 rating action.  Accordingly, the Board considers the Veteran's acquired psychiatric disorder claim to be fully resolved and, thus, outside the scope of its appellate jurisdiction.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of the claim concerning 'downstream' issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2012).

As a final introductory matter, the Board observes that the Veteran testified at the aforementioned Travel Board hearing that she had contracted fibromyalgia while serving in Saudi Arabia during the First Gulf War.  See Board Hearing Tr. at 4.  The Veteran's testimony was consistent with her recent VA treatment records, which contained notations of "possible fibromyalgia."  Accordingly, the Board determined that she had raised a service connection claim for fibromyalgia, or a similar unexplained chronic multisymptom illness, pursuant to 38 C.F.R. § 3.317.  Such a claim was thereafter referred to the AOJ, but has yet to be developed or adjudicated.  Accordingly, the Board again refers the issue of service connection for an unexplained chronic multisymptom illness under 38 C.F.R. § 3.317 to the AOJ for appropriate action.

The issue of service connection for a low back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  A preponderance of the evidence of record does not demonstrate the existence of hearing loss in either ear that qualifies as disabling for VA purposes.

2.  A preponderance of the evidence of record does not demonstrate the existence of a current left knee disorder. 


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012).

2.  The criteria for service connection for a left knee disorder have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1) (2012).  VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The VCAA notice requirements apply to all five elements of a service-connection claim:  Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability.  See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006).  

In this case, initial VCAA notice was furnished through a January 2008 letter, which advised the Veteran of the evidence needed to substantiate her claim for service connection for bilateral hearing loss, as well as the criteria required to reopen her claim for service connection for a left knee disorder.  See Kent v. Nicholson, 20 Vet. App. 1 (2006).  That VCAA notice letter also outlined the responsibilities of the Veteran, and those of VA, in obtaining relevant evidence, while describing in detail how VA assigns a disability rating and an effective date following the grant of service connection.  The same criteria were later addressed in a follow-up April 2012 notice letter, which was sent to the Veteran after the Board had reopened her left knee claim.  Accordingly, the Board finds that the Veteran was provided with comprehensive notice of the baseline VCAA requirements regarding both her hearing loss and reopened left knee claims.  The Board also finds that the Veteran has been notified of the heightened requirements set forth in Dingess, even though such criteria have now been rendered moot by the Board's decision to deny service connection for the claimed hearing and left knee disorders.  

The Board acknowledges that the second VCAA notice letter post-dated the initial unfavorable adjudications of the Veteran's claims.  Nevertheless, the Board finds that any prejudice arising from that late VCAA notice has been effectively cured by the subsequent readjudication of those claims in the March 2013 supplemental statement of the case (SSOC).  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect).  In that SSOC, the AOJ considered all of the pertinent evidence of record, including the clinical findings and lay argument that had been elicited on remand.  Accordingly, the Board finds that any delay in VCAA notice has neither deprived the Veteran of effective participation in the processing of her hearing loss and left knee claims nor compromised the fairness with which those claims have been decided.  As such, no further development is required with respect to the duty to notify under 38 C.F.R. § 3.159(b).

With respect to the duty to assist, the AOJ has obtained the Veteran's service personnel and treatment records.  The AOJ also has obtained the Veteran's VA treatment records and has attempted to elicit records of private treatment that are relevant to her appeal.  In this regard, the AOJ has heeded the Board's directive to request authorization from the Veteran for the release of her private treating providers' records.  However, the Veteran has not responded to the AOJ's request.  Accordingly, the Board finds that, to the extent that salient private medical evidence has not been obtained, the responsibility lies with the Veteran.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist is not a one-way street.)  See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (stating that VA is not required to provide assistance to a claimant if no reasonable possibility exists that such assistance would aid in substantiating the claim).  

In any event, the Board observes that the above private treatment records were requested in connection with the Veteran's acquired psychiatric disorder claim, which has since been granted.  It follows that the Veteran is not adversely affected by the absence of such records with respect to her remaining claims.  Significantly, she has not contended, and the record has not otherwise shown, that any other service or post-service records remain outstanding that are necessary to decide her hearing loss and left knee claims.  

In addition to undertaking the above records development, the AOJ has elicited other clinical and lay evidence pertinent to this appeal.  Such evidence includes June 2012 VA examination reports and medical opinions, which were obtained through the disability benefits questionnaire (DBQ) process, as well as the Veteran's own written statements and Travel Board hearing testimony.  

The Veteran has not alleged, and the record does not otherwise suggest, that those examiners' opinions are inadequate to rate her hearing loss and left knee claims.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that VA must provide an examination that is adequate for rating purposes).  As such, the Board considers it unnecessary to obtain new examinations or medical opinions in support of those claims.  

The Board also considers it unnecessary to otherwise delay adjudication as its prior Remand has met with substantial compliance by the AOJ.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable, instead, to have 'substantial' compliance, even if not 'exact', 'total' or 'complete' compliance, per se).  In addition to undertaking further records development and furnishing VA examinations and medical opinions, the AOJ has readjudicated the Veteran's hearing loss and left knee claims in a March 2013 SSOC.  In that readjudication, the AOJ has expressly addressed the recently obtained VA outpatient treatment records, examination reports, and medical opinions, which collectively comprise the only substantive evidence introduced since the prior SSOC.  As such, the AOJ has substantially complied with VA's governing regulatory provisions that the SSOC consider all evidence added to the record since the Statement of the Case or the most recent SSOC.  See 38 C.F.R. § 19.31 (2012).  

Even if the March 2013 SSOC had not specifically mentioned the newly received evidence, another Remand would not be warranted.  On the contrary, "[t]here is a presumption of regularity that public officers perform their duties 'correctly, fairly, in good faith, and in accordance with law and governing regulations.'"  Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005) (quoting Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795 (Fed. Cir. 1993)).  Courts presume that, "'in the absence of clear evidence to the contrary,'" public officers have "'properly discharged their official duties.'"  Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)).  Therefore, absent any evidence to the contrary, the Board presumes that the AOJ has reviewed all of the pertinent evidence of record when readjudicating the Veteran's hearing loss and left knee claims in the March 2013 SSOC.  Neither the Veteran nor her representative has presented any arguments alleging that this duty was not discharged; they also have not presented any evidence to the contrary.  Thus, the presumption of regularity has not been rebutted.  The Board therefore concludes that the March 2013 SSOC has substantially complied with the Board's Remand directive to readjudicate the Veteran's hearing loss and left knee claims and that there has been substantial compliance with the entirety of its Remand instructions related to those claims.  See Stegall, 11 Vet. App. at 271.  

As a final matter regarding the duty to assist, the Board observes that the Veteran has had the opportunity to testify in support of her hearing loss and left knee claims during her August 2011 Travel Board hearing.  38 C.F.R. § 20.700(a) (2012).  The transcript of that proceeding reflects that the undersigned set forth the relevant issues at the start of the hearing, focused on the elements necessary to substantiate those claims, and sought to identify any further development that was required.  Those actions satisfied the duties a Veterans Law Judge or Acting Veterans Law Judge has to explain fully the issues and to suggest the submission of evidence that may have been overlooked.  See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board).  Significantly, the Veteran has not contended, and the evidence has not otherwise shown, that the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise committed prejudicial error, either by failing to fully explain the relevant laws and facts or by neglecting to suggest the submission of evidence that may have been overlooked.  Moreover, there is no indication that the Veteran was otherwise denied due process during her Travel Board hearing.  

In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied with respect to the claims adjudicated herein and, thus, appellate review of those issues may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).




II.  Service Connection 

The Veteran, in written statements and testimony before the Board, contends that she developed bilateral hearing loss and a left knee disorder in the United States Army and that service connection is therefore warranted for those disabilities.

Service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  

Service connection may also be granted on a presumptive basis for certain chronic disabilities, including other organic diseases of the nervous system and arthritis, which manifest to a compensable degree within the initial post-service year.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012).

To establish service connection for a claimed disorder, generally, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  Hickson v. West, 12 Vet. App. 247, 253 (1999).  

In this case, the Veteran has not met the initial criterion of Hickson (current disability) with respect to either her hearing loss or her left knee claims.  Accordingly, each of those service-connection claims must be denied, as discussed in further detail below.  

      A.  Bilateral Hearing Loss

At the outset of its discussion, the Board recognizes that the Veteran has testified at length regarding her in-service exposure to noise from generators, motor pool tank engines, and Scud missile fire.  See Board Hearing Tr. at 10-11.  The Veteran is competent to report such a history of acoustic trauma, which falls within the scope of her personal experience.  38 C.F.R. § 3.159(a)(2) (2012); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Moreover, the Board finds her testimony credible as it is internally consistent and in line with the circumstances of her wartime service in the Persian Gulf.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony).  Accordingly, the Board accepts the Veteran's lay assertions as probative evidence that the alleged noise exposure occurred.  While this supports her claim for service connection for bilateral hearing loss, she must still show that she has a current disability that was caused or aggravated by the conceded in-service trauma.

The Board acknowledges that such evidence has been presented with respect to the Veteran's tinnitus claim, which she has pursued in tandem with the appeal at issue.  Indeed, the examiner who conducted the June 2012 VA audiology examination expressly linked the Veteran's in-service noise exposure to her current tinnitus, which she herself was competent to diagnose.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding that a veteran is competent to testify to ringing in the ears (tinnitus) which is capable of lay observation).  In contrast, the June 2012 examiner declined to relate that active-duty trauma to the Veteran's complaints of hearing loss, opining instead that such symptoms were consistent with the normal aging process. 

Even without the foregoing negative opinion, the evidence would not support a grant of the Veteran's hearing loss claim.  That is because, unlike tinnitus, sensorineural hearing loss is not susceptible to lay diagnosis.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (Fed. Cir. 2007) (holding that sometimes a layperson will be competent to identify a medical condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (noting that, unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis).  Moreover, the question of whether a perceived shift in hearing constitutes a current disability is controlled by regulation.  Specifically, 38 C.F.R. § 3.385 dictates that impaired hearing will be considered disabling for VA purposes only when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies 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 (2012).  Such criteria have not been met in the instant case.  

Although the Veteran demonstrated some degree of bilateral hearing loss during her June 2012 audiology examination, none of her auditory thresholds qualified as disabling under 38 C.F.R. § 3.385:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
25
25
LEFT
20
20
15
20
30

Significantly, at the time of the above testing, the Veteran's Maryland CNC speech recognition scores were assessed as 100 percent, bilaterally.  Such scores well exceed the threshold for disability under the governing regulation.  Id.  

A review of the Veteran's claims file reveals no clinical findings which suggest that she has met the regulatory requirements for disabling hearing loss in either ear.  The Board recognizes that she has exhibited auditory thresholds indicative of some degree of hearing loss; however, her overall level of hearing impairment has not risen to the level of a disability for VA purposes.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds are indicative of some degree of hearing loss, albeit not necessarily enough to constitute a disability for VA purposes).

The Board is sympathetic to the Veteran's claim and does not question the sincerity of her belief that in-service noise exposure has left her with disabling hearing loss.  However, while competent to report the incurrence of active-duty acoustic trauma, she has not demonstrated the expertise to diagnose hearing loss in accordance with 38 C.F.R. § 3.385.  Nor has the Veteran shown that she has the knowledge or training to relate such a diagnosis to her active service.  See Jandreau, 492 F.3d at 1377, Note 4; Woehlaert, 21 Vet. App. at 462.

Accordingly, the Board finds that, while the second element of Hickson (in-service incurrence) has been met in this case, neither the first nor third elements (current disability and nexus) has been satisfied.  The absence of current disability alone effectively means that there can be no valid claim.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Therefore, while mindful of the benefit-of-the-doubt rule, the Board finds that rule is not for application, given the particular facts of this case, and that service connection for bilateral hearing loss must regrettably be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

      B.  Left Knee Disorder

As with the issue decided above, the Veteran's claim for service connection for a left knee disorder is supported by evidence that effectively meets the second prong of the Hickson test.  Hickson, 12 Vet. App. at 253.  Indeed, the Veteran has testified that she fell down in service and injured both her left knee and lower back.  See Hearing Tr. at 2-3.  Just as she is competent to report a history of active-duty noise exposure, she also has the personal knowledge to describe an in-service joint injury that she experienced with her senses.  See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  

Moreover, as with her account of acoustic trauma, her report of a left knee injury is corroborated by objective evidence.  Specifically, the Veteran's service treatment records are replete with notations of left lower extremity pain, as well as specific complaints of tenderness and swelling in the lateral compartment of the left knee.  Those records further show that, in June 1985, the Veteran informed Army medical providers that she had injured her left knee playing softball.  Subsequent service treatment records dated in December 1993 reflect a history of swollen or painful joints.

In light of the foregoing, the Board considers the Veteran's allegations of in-service left knee injury to be both competent and credible.  See Buchanan, 451 F.3d at 1336-37; Caluza, 7 Vet. App. at 511.  Therefore, the remaining questions are whether she has a current left knee disorder and whether any such disorder is causally related to her documented in-service injury.

In an effort to answer these questions, the Board remanded the Veteran's left knee claim for a VA examination, which was conducted in June 2012.  At that time, the Veteran set forth her current complaints regarding radiating pain and related symptoms, which affected both her lower back and left knee.  Significantly, however, clinical testing revealed that her symptoms were all consistent with orthopedic and neurological lumbar spine abnormalities and did not support a specific left knee diagnosis.

Tellingly, the Veteran has not offered any evidence refuting the VA DBQ examiner's findings.  Nor has she submitted other documentation in support of her left knee claim, despite the AOJ's express request for such information.  Wood, 1 Vet. App. at 193.  Moreover, notwithstanding the above in-service complaints, the Veteran's service treatment records are silent for any clinical diagnoses of left knee disorders.  Further, none have been shown throughout the pendency of this appeal.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim.).  Accordingly, the Board has no basis to disregard the June 2012 VA DBQ examiner's conclusions regarding the lack of current left knee pathology.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from exercising its own independent judgment to resolve medical questions).  

The Board recognizes that the Veteran herself is of the opinion that she has a current left knee disorder that began in service.  However, as with sensorineural hearing loss, a left knee disorder does not lend itself to lay diagnosis unless it is patently discernible, such as a broken leg.  See Jandreau, 492 F.3d at 1377, Note 4.  No such obvious disability exists here.  Rather, the Veteran's claimed left leg symptoms are inherently complex as they overlap with her reports of radiating lower back pain and related complaints.  Moreover, she has not shown that she has the requisite expertise, gleaned through education, training or other experience, to translate her alleged symptoms into a valid diagnosis for VA purposes.  See Clyburn  v. West, 12 Vet. App. 296, 301 (1999) (Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.).  Accordingly, the Board finds that the Veteran's unvarnished reports of such symptoms, which she herself attributes to an in-service injury but which lack any identifiable underlying malady or condition, do not rise to the level of a current disability.  Without a pathology to which such symptoms can be attributed, there is no basis upon which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).

For the foregoing reasons, the Board finds that the threshold requirement for service connection - evidence of a current disability - has not been met with respect to the Veteran's left knee claim and, thus, that claim must also be denied.  See Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  In reaching this decision, the Board has considered the benefit-of-the-doubt rule, but has found that rule to be inapplicable as the preponderance of the evidence weighs solidly against the claim.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for a left knee disorder is denied.


REMAND

Although the Board regrets the additional delay in processing the Veteran's low back claim, further development is necessary to ensure compliance with its prior Remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that, where the Remand Orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance).  

The Board previously remanded the Veteran's low back claim for a VA etiological examination, which was conducted in June 2012.  However, the VA physician's assistant responsible for that examination declined to address the Veteran's pertinent clinical and lay history.  

Despite finding that the Veteran met the diagnostic criteria for mild disc degeneration, L2/3 through L4/5; L4/5 and left foraminal L3/4 disc bulges; and mild spondylosis, the June 2012 VA examiner observed that there "was no supporting documentation" for any lower back disorder in the Veteran's claims file.  That observation runs counter to the evidence contained in the Veteran's service treatment records, including her numerous in-service complaints of low back pain and the contemporaneous clinical findings of back symptoms.

Similarly, the June 2012 examiner's findings are contradicted by the post-service clinical evidence, which includes records of outpatient treatment for lumbar spondylosis, lumbago, left L5 radiculopathy, left L4-5 and L5-S1 facet arthropathy, and peripheral neuropathy.  

In addition, the Veteran herself has attested to current symptoms of chronic lower back pain and radiculopathy, which have persisted on an ongoing basis since her active service.  See Hearing Tr. at 5-6.  Such testimony, in tandem with the other evidence of record, suggests that the Veteran has exhibited a continuity of low back symptomatology since leaving service.   See 38 C.F.R. § 3.303(b).  Parenthetically, the Board acknowledges that the theory of continuity of symptomatology may only serve as a path to service connection for diseases that fall within the presumptive provisions outlined in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331, 1337-1338 (Fed. Cir. 2013) (limiting the application of continuity of symptomatology to those diseases expressly recognized as chronic under 38 C.F.R. § 3.309(a)).  Fortuitously for the Veteran, such diseases include the arthritic disorders of the lumbar spine with which she is currently diagnosed.  Accordingly, the Board must consider whether to grant her low back claim based on continuity of symptomatology as well as the traditional Hickson elements.  See 38 C.F.R. § 3.303(b); Hickson, 12 Vet. App. at 253.  

By disregarding the above evidence, which supports the Veteran's claim under the criteria set forth in both 38 C.F.R. § 3.303(b) and Hickson, the June 2012 VA examiner has failed to render an opinion that is sufficient to guide the Board towards an informed decision in this case.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding that an examination report is adequate where it describes the disability in sufficient detail so the Board can make a fully informed evaluation of the disability).  Moreover, while the tenor of that VA examiner's report is unfavorable to the Veteran's claim - indicating that her current left back problems were less likely than not incurred in or caused by her active service - the underlying rationale is inherently speculative.  Indeed, the June 2012 examiner has expressly stated that she cannot provide the requested etiological opinion without resorting to speculation.  As such, the Board may not rely on that examiner's opinion to adjudicate the Veteran's claim.  See Jones v. Shinseki, 23 Vet. App. 382 (2010) (holding that an examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).

Where, as here, a VA medical opinion is inadequate for rating purposes and the existing record does not otherwise permit a grant of the Veteran's claim, the Board has no alternative but to remand the claim for another opinion.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Accordingly, the Board finds that, on remand, the contents of the paper claims file and Virtual VA efolder should be forwarded to a different VA examiner for a clarifying opinion.  If possible, the Board requests that the examination be performed by a licensed physician with knowledge of lumbar spine disorders.  See Black v. Brown, 10 Vet. App. 279, 284 (1997).  The Board asks that the designated VA examiner provide an opinion clarifying whether or not any current low back disorder had its onset in service or is otherwise related to the Veteran's period of active duty.  The examiner should support his or her opinion with a detailed rationale that fully accounts for the complaints and clinical findings of low back problems contained in the Veteran's service and post-service treatment records, her written statements and testimony, and any additional evidence obtained pursuant to this Remand.

In this regard, the Board requests that, prior to the eliciting the aforementioned addendum opinion, the AOJ should ensure that the record is complete by obtaining all outstanding records from the VA Medical Center in Salem, Virginia, dated since February 8, 2013.  See 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file, either physically or electronically, all treatment records from the Salem VA Medical Center dated since February 8, 2013.

2.  After the above has been completed to the extent possible, forward the contents of the Veteran's paper claims file and Virtual VA efolder to a licensed physician (preferably one with specialized knowledge of lumbar spine disorders) for an opinion clarifying the etiology of the Veteran's current lower back problems.  The Veteran need not be scheduled for a new VA examination unless the examiner determines that one is crucial to render the requested opinion.

After reviewing the entire contents of the paper claims file and Virtual VA efolder, the VA examiner is asked to render an opinion that specifically addresses the following:

(a.)  Set forth all current diagnoses of the lumbar spine, both orthopedic and neurological.  

(b.)  State whether it is at least as likely as not (50 percent probability or greater) that any current lumbar spine disorder arose during service or is otherwise related to service.  

The examiner should support all findings with a detailed rationale that expressly accounts for the complaints and clinical findings of low back problems contained in the Veteran's service and post-service medical records, as well as her written statements and Travel Board testimony.  

If the VA 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.  Thereafter, readjudicate the claim remaining on appeal.  If any aspect of the decision remains adverse to the Veteran, issue a supplemental statement of the case, which expressly accounts for all the evidence obtained pursuant to this Remand.  After allowing the appropriate time for response, return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter 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 or by 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).



______________________________________________
Nathaniel J. Doan
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs