Citation Nr: 1317741 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-37 010A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for Hepatitis B. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for low back disability. 4. Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1961 to May 1969 (and had subsequent service in the National Air Guard). These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Albuquerque, New Mexico Department of Veterans Affairs (VA) Regional Office (RO). An unappealed August 2002 rating decision had denied the Veteran service connection for tinnitus and for a low back disability [as well as hearing loss, which has since been service-connected]. Evidence associated with the record since then includes service treatment records (STRs) that were not considered in the February 2002 rating decision. VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim de novo. 38 C.F.R. § 3.156(c)(1)(i). Consequently, de novo review of these claims is warranted. The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5013A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claim. See 38 C.F.R. § 3.159 (2012). Regarding Hepatitis B, the Veteran contends that he developed such disability while serving in Thailand. He claims that he was told by a VA physician that his Hepatitis B is likely related to his service in Thailand. A March 2007 VA treatment record shows he underwent testing which appears to reflect that he was exposed to Hepatitis B. [A February 2008 Hepatitis B Virus (HBV) DNA Testing and Interpretation Update indicates that that specific test should not be used as a diagnostic test for a Hepatitis B infection.] Consequently, while it is shown that the Veteran was exposed to Hepatitis B, the record does not show definitely whether or not he has such disease. Regarding tinnitus, the Veteran alleges that such disability resulted from noise trauma during service. The Veteran has established service-connection for hearing loss. A January 2002 statement from a private physician indicates that he had been the Veteran's primary care provider for the past 7 years, during which time the Veteran had chronic tinnitus. The physician stated that this condition resulted, at least in part, from exposure to loud noises in the military. On March 2008 VA audiological evaluation, the examiner opined that the Veteran's tinnitus was unrelated to service (in essence because it began years after discharge). The examiner's rationale as to why the Veteran's tinnitus is unrelated to service does not adequately explain why the etiologies of the Veteran's hearing loss and tinnitus should be distinguished. Consequently, a medical opinion that accounts for the known relationship between hearing loss and tinnitus is needed. The Veteran has not been afforded a VA examination with respect to his claim of service connection for a low back disability. An examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the Veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the United States Court of Appeals for Veterans Claims has stated that this is a "low threshold" requirement. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran's STRs show that in September 1961 he was seen for back strain sustained lifting weights. In April 1965, he was seen for low back pain and placed on a 30 day limited duty profile. In an April 1969 report of medical history, the Veteran endorsed a history of back trouble; it was noted that he strained his back lifting weights in 1961 and 1964, and that there were no sequellae from these injuries. On service discharge examination, the Veteran's spine was normal on clinical evaluation. The Veteran has received diagnoses of herniated disc, acute lumbar strain, muscle strain, and central spine stenosis. Based on the foregoing, the low threshold requirement of McLendon is met and an examination to secure a medical nexus opinion is necessary. The Veteran was last afforded a VA audiological evaluation in March 2008. He asserts that his hearing loss disability has worsened in the interim. Given the length of the intervening period, and that he is competent to observe a decline in hearing acuity, a contemporaneous examination to ascertain the current severity of his hearing loss is necessary. Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify all providers of evaluation or treatment he has received for the disabilities at issue postservice, specifically including the VA physician who related his Hepatitis B to his service, and to provide any authorizations necessary for VA to obtain records of any such private evaluation or treatment. The RO should secure for the record copies of complete clinical records (i.e., those not already associated with the claims folder) of the evaluations and treatment from all providers identified. The Veteran should be notified if any records sought are not received pursuant to the RO's request, and remind him that ultimately, it his responsibility to ensure that private records are received. 2. The RO should then arrange for the Veteran to be examined by an appropriate physician to determine whether or not he has Hepatitis B, and if so, whether such disease is etiologically related to his service. The Veteran's entire record must be reviewed by the examiner and any tests or studies indicated should be completed. If Hepatitis B is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's Hepatitis B is related to his service in Thailand. The examiner must explain the rationale for all opinions given and discuss any known risk factors for Hepatitis B in the record shown in service and postservice. 3. The RO should also arrange for an audiological evaluation of the Veteran (with audiometric studies) to ascertain the likely etiology of tinnitus and the current severity of his bilateral hearing loss. The entire record (to include this remand) must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner should: (a) Report/certify the findings as to the Veteran's current hearing acuity, to specifically include comment regarding the expected impact of the hearing loss found on everyday and occupational functioning. (b) Offer an opinion regarding the likely etiology of the Veteran's tinnitus, and specifically whether it is at least as likely as not (a 50% or better probability) that such disability is related to the Veteran's service/events therein or was caused or aggravated by his now service-connected hearing loss disability. The explanation of rationale for this opinion must include discussion (with citation to supporting medical literature and factual evidence) regarding whether there is a sound medical basis for dissociating the etiology of the Veteran's service-connected hearing loss from the etiology of his tinnitus. The examiner must explain the rationale for all opinions. 4. The RO should also arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his low back disability. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner should: (a) Identify (by medical diagnosis) each low back disability found. (b) As to each diagnosed low back disability entity, opine whether it is at least as likely as not (a 50 percent or better probability) that such disability is related to his service/and specifically the complaints noted therein. The examiner must explain the rationale for all opinions. 5. The RO should then review the record and readjudicate the Veteran's claims. If any remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. The appellant 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ GEORGE R. SENYK 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).