Citation Nr: 1316632 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 04-02 522 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a low back disability (The issues of entitlement to initial higher ratings for hemorrhoids and bilateral pes planus with bunion formation bilaterally are the subject of a separate appellate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from February 1997 to June 2000. This appeal to the Board of Veterans' Appeals (Board) arose from decisions in May and November 2002 in which the RO denied service connection for hearing loss and spondylolysis of L4-L5. The Veteran filed a notice of disagreement (NOD) in November 2002, and the RO issued a statement of the case (SOC) in January 2004. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later in that same month. In March 2004, the Veteran testified during a hearing before RO personnel; the transcript of that hearing is of record. In September 2005, the undersigned Veterans Law Judge granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2012). In October 2005, the Board issued a decision denying, inter alia, service connection for a low back disability. The Veteran, in turn, appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In January 2008, counsel for the appellant and for the VA Secretary filed a Joint Motion for Remand and to Stay Further Proceedings (Joint Motion). Later in January 2008, the Court entered an Order, vacating that portion of the Board's October 2005 decision relating to the claims for service connection for a low back disability, and remanded this claim (as well as the issues of service connection for depression and hemorrhoids) to the Board for further proceedings consistent with the Joint Motion. In the Joint Motion, the parties directed the Board to make another attempt to obtain certain private and VA records of the Veteran's treatment. In October 2005, the Board also remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC, the claim for service connection for hearing loss as well as other claims that are no longer in appellate status. After accomplishing the requested action, the AMC continued the denial of the claim for service connection for hearing loss (as reflected in the February 2009 supplemental SOC (SSOC)). In December 2009, the Board remanded the issue of service connection for a low back disability in accordance with the Joint Motion, as well as the issue of service connection for hearing loss. After accomplishing the requested action, the AMC continued the denial of the claim for service connection for hearing loss and a low back disability (as reflected in a June 2011 SSOC). In that same December 2009 Board decision, the remaining issues on appeal were denied, except for the issues of entitlement to service connection for hemorrhoids and depression with insomnia, which were also remanded in accordance with the Joint Motion. In July 2010 and February 2011 rating decisions, the RO granted service connection for hemorrhoids and major depression with generalized anxiety, respectively, representing a full grant of the benefits sought. The Board notes that the Veteran previously was represented by the Paralyzed Veterans of America as well as a private attorney. At the time of the December 2009 Board decision, the Veteran had chosen to represent himself. However, in May 2010, the Veteran furnished a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, identifying DAV as his representative. The Veteran's current representative has submitted written argument on his behalf. The Board recognizes the change in representation. In July 2011, the Veteran submitted additional medical evidence which was not considered by the RO. Nevertheless, in light of the need to remand for further development, the RO will have the opportunity to consider this evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2012). As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. For the reasons expressed below, the matters on appeal are again being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately the Board finds that further RO action on the claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on the matters on appeal. The Veteran is seeking connection for bilateral hearing loss. Importantly, an audiological evaluation dated in November 1999, while the Veteran was in service, observed a threshold shift was noted on routine audiometric examination and indicated that test results showed mild bilateral sensorineural hearing loss. Nevertheless, a December 2000 VA examination diagnosed bilateral normal hearing acuity with normal discrimination. Further, a December 2000 VA treatment record showed an assessment of normal hearing acuity, but it was noted that the Veteran had slight bilateral acoustic trauma notches at 4000 Hertz consistent with military noise trauma as he had no history of civilian noise exposure. Most recently, the Veteran was afforded a VA examination in February 2008. However, although there was no apparent physical or language barrier to obtaining the Veteran's cooperation, the examiner stated that she was unable to obtain reliable thresholds. The examiner also observed that rating examination dated in December 2000 and treatment records in June 2003 and October 2006 documented normal hearing. Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2012). In the instant case, it is unclear from the evidence of record whether the Veteran has a current hearing loss disability for VA purposes. Moreover, subsequent to the February 2008 VA examination, in March 2009, the Veteran reiterated that he had trouble hearing sounds as well as having conversations and requested a new examination. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. Under the circumstances of this case, the Board finds that another examination and an opinion by an audiologist or Ear, Nose and Throat (ENT) physician would help in resolving the claim for service connection. With respect to the claim for a low back disability, the Veteran was afforded a VA examination in May 2011. The examiner diagnosed chronic lumbar strain without any neurological deficiency and opined that the disability was not "at least as likely as not had its onset during, was caused by, or is related to his military service, and or was caused or aggravated by his service-connected pes planus, and/or right ankle condition." The only rationale provided was that the Veteran's physical structure was causing his chronic pain in the lower back due to strain, which was supported by the fact that the x-rays in 2008 were normal without any evidence of degenerative disk disease. However, in rendering this opinion, the examiner failed to address relevant evidence of record. For instance, he did not address the competent medical evidence by way of VA treatment records and the credible lay evidence, including numerous statements by the Veteran as well as a May 2002 statement from a fellow service member, documenting pertinent symptomatology of the low back since service. Moreover, it does not appear that he considered the following pertinent evidence in support of the Veteran's claim: an October 2010 Accommodation Request from the Veteran's VA doctor that showed a diagnosis of degenerative disc disease; an August 2009 private opinion by A.A., M.D. that indicated that the Veteran had degenerative arthritis within one year of service as well as the fact that the Veteran's altered gait due to his service-connected ankle and feet disabilities affected his low back; a May 2009 private opinion by J.B., M.D. that also indicated that the Veteran's back disability arose during service; and an April 2003 private opinion from S.Y., M.D that indicated that the Veteran had mild to moderate degenerative arthritis of the lumbosacral spine. Moreover, the examiner referenced a normal 2008 x-ray, but failed to address prior x-rays dated in December 2000 that gave an impression of degenerative joint disease facet joints L4-L5 and November 2005 that documented spondylolysis. Finally, a March 2002 VA examination report, performed by the same examiner indicated that the radiologic evidence of spondylosis at L4-L5 was developmental. Congenital or developmental abnormalities are not "diseases or injuries within the meaning of applicable legislation" and, hence, do not constitute disability for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9. However, service connection may be granted, in limited circumstances, for disability due to aggravation of a constitutional or developmental abnormality by superimposed disease or injury. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). However, neither at the time of the May 2002 examination nor in the most recent May 2011 examination report did the examiner opine whether the Veteran has current disability resulting from in-service aggravation of a developmental abnormality by superimposed disease or injury. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that the relevant inquiry when assessing the probative value of a medical opinion is whether the opinion reflects application of medical principles to an accurate and complete medical history). Under these circumstances, the Board also finds that another examination and an opinion by an appropriate physician are needed to resolve the claim for service connection. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may result in denial of the claim(s) (as the original claim(s0 for service connection will be considered on the basis of the evidence of record). 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination(s), the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination(s) sent to him by the pertinent VA medical facility. Prior to arranging for further examinations, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. The claims file shows that that the Veteran previously filed for disability benefits from the Social Security Administration (SSA). Although a February 2004 SSA decision denying the Veteran's claim is of record, the decision references medical evidence that has not been associated with the claims file. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the RO should request from SSA a copy of its determination on the Veteran's claim for disability benefits, as well as copies of all medical records underlying its determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities, and to associate all records and/or responses received with the claims file. Further, a remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the December 2009 remand, the Board directed the RO to obtain all outstanding VA treatment records from the VA Medical Center (VAMC) in Detroit, Michigan, particularly from July 2000 to September 2003, and audiometric testing results from June 2003 and October 2006. While it appears that these records were requested and treatment records were submitted, including a July 2003 audiology consult, the claims file does not appear to include any October 2006 audiology record. Moreover, no further current treatment records were obtained with respect to the disabilities on appeal. While the claims file currently includes outpatient treatment records from the Detroit VAMC, dated from May 2010; these records appear to only address the Veteran's dental treatment. Moreover, there also seems to be gaps in the VA treatment records prior to May 2010. For instance, the May 2011 VA examiner referenced a February 2008 VA x-ray, which does not appear to be in the claims file. In July 2011, the Veteran also submitted treatment records dated in 2009 that do not appear to be elsewhere in the claims file. Importantly, it appears that most of the VA treatment records in the claims file were submitted by the Veteran so it is unclear whether the record is complete. Moreover, the Veteran's Virtual VA electronic record also does not include any VA treatment records. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, to ensure that that all of the applicable VA treatment records are of record, the RO must obtain from the Detroit, Michigan VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, from June 2000 to the present, following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Detroit VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, from June 2000 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. 2. Request from SSA a copy of its determination on the Veteran's claim for disability benefits, as well as copies of all medical records underlying its determination. In requesting these records, the RO should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to any claim(s) on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange for the Veteran to undergo VA examination, by an appropriate audiologist or ENT physician, to address the etiology of the Veteran's hearing loss and tinnitus. The entire claims file, to include complete copy of the REMAND must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. Based on the results of audiometric testing, the physician should specifically indicate, with respect to each ear, whether the Veteran currently has hearing loss to an extent recognized as a disability for VA purposes (i.e., an auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 hertz of 40 decibels or greater; or an auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz of 26 decibels or greater; or speech recognition scores using the Maryland CNC test of less than 94 percent). Then, if any hearing loss disability is diagnosed, also with respect to each ear, the examiner should offer an opinion, consistent with sound medical principles, and based on consideration of the Veteran's in-service and post-service history and assertions, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability is the result of injury or disease incurred or aggravated in service, to specifically include his significant noise exposure. In rendering the requested opinion, the examiner should address the significance, if any, of the threshold shift documented in 1999 while the Veteran was still in service. The examiner should set forth all examination findings (if any), along with a complete, clearly stated rationale for the conclusions reached, in a printed (typewritten) report. 6. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination, by an appropriate physician at a VA medical facility, to address the etiology of any low back disability. The pertinent evidence from Veteran's claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all current disability(ies) affecting the low back. Then, with respect to each such diagnosed disability, the physician should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is at least a 50 percent or greater probability), that the disability: (a)) had its onset in or is otherwise medically related to service; (b) is the result of in-service aggravation of a developmental defect by superimposed disease or injury; (c) if diagnosed arthritis, was manifested to a degree of 10 percent within one year of discharge from service; or (d) was caused or is aggravated by service-connected right ankle and/or bilateral pes planus disabilities In rendering each requested opinion, the physician should specifically consider and discuss the in- and post-service treatment records, as well as the Veteran's contentions. Specifically, the physician should address the medical and lay evidence documenting pertinent symptomatology since service; an October 2010 Accommodation Request showing a diagnosis of degenerative disc disease; the April 2003, May 2009 and August 2009 private opinions from A.A., J.B. and S.Y., respectively; and December 2000 and November 2005 x-rays documenting degenerative joint disease and spondylosis, respectively. The examiner should set forth all examination findings, together with the complete rationale for the conclusions reached, in a printed (typewritten) report. 7. If the Veteran fails to report to any scheduled examination(s), obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. 8. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 9. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence (to particularly include all evidence added to the record since the last adjudication of the claim) and legal authority. 10. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until 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); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).