Citation Nr: 1318029 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 11-23 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for residuals of a back disability. 2. Entitlement to service connection for residuals of a head injury. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran served on active duty from October 1960 to October 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran underwent VA examinations in October 2012 and medical opinions were obtained in 2013. As will be explained below the Board finds that due process requires that additional development be accomplished prior to making determinations on the issues on appeal. A. Back Disorder The Veteran is claiming service connection for a back disorder, which he argues was incurred in service. His service treatment records show treatment for back pain. The January 2013 VA clinician stated that the currently diagnoses of lumbar strain, mild disc space narrowing of the L5-S1, and spondylosis were not caused by the claimed inservice injury, event, or illness. The rationale was that neither the service entrance or separation examinations were positive for a back disorder and that the Veteran was seen twice in service for back pain. The current findings were noted and the examiner concluded that there was no evidence of chronicity of a back disorder or continuity since service. The examiner found that the current findings were due to aging. However, the examiner did not address the Veteran's complaints of back pain on VA examination in October 1963 or his lay contentions of back pain since service. The examiner also did not address the March 1967 statement from a private physician in which it is stated that the Veteran was treated in 1966 for "back pain and disability." The Veteran's statements are competent evidence about observable symptoms or injury residuals, such as back pain. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran's statements are competent evidence of continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the rationale provided by the January 2013 examiner is problematic, considering the Veteran had in-service treatment for back pain, complaints of back pain within one year of discharge, and treatment for back pain approximately 4 years after discharge. In the prior remand, the Board directed that lay statements must be considered in providing the requested opinion. As the VA examiner did not discuss this relevant lay history or the prior medical records, the Board finds that this VA opinion is inadequate for entering a final decision. West v. Brown, 7 Vet. App. 70, 77-78 (1994). Therefore, an addendum opinion, based on all relevant evidence, both medical and lay, must be obtained. B. A Bilateral Foot Disability In January 2013, a VA opinion was offered regarding the Veteran's bilateral foot disorders of flatfoot, mild degenerative changes, and bilateral bone spurs. The clinician found that the Veteran's foot disorder was not related to service. The service entrance examination in October 1960 notes a history of foot trouble; however, the clinical evaluation of the feet was normal. However, the rationale for the opinion included a statement that the foot disorder was noted on entrance in October 1960. The examiner also included in the rationale that in April 1961 the Veteran was assessed for foot pain, and at separation in September 1962, it was reported that the feet ached with prolonged standing. The examiner stated that in two years of service, the Veteran was only seen once for foot pain and thus, this did not support a chronic foot disorder aggravated by service. However, the Veteran was also seen for foot pain during service in April 1962 and again in June 1962. He was also seen in October 1960 for mild right Achilles tendonitis. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Thus a remand for an adequate opinion is necessary. C. Bilateral Hearing Loss The record shows that the Veteran was assigned to an artillery unit during service. A diagnosis of bilateral hearing loss for VA purposes is of record. His service treatment records show a finding of questionable decreased auditory acuity in August 1961, with a normal audiogram. When a July 2011 VA opinion was rendered, the examiner did not consider the Veteran's lay statements, which indicated continuity of symptoms since service. In a September 2007 statement, the Veteran reported that his hearing loss began while on active duty. When an opinion as to the etiology of the Veteran's hearing loss was provided in January 2013, the examiner found that given the threshold information on examinations in service and the lack of any testing from the year after service showing hearing loss developed, the current hearing loss was not due to service. However, the lack of documentation of hearing loss in service or within the first post service year is not an adequate basis for the finding that the current hearing loss is not related to service. The absence of hearing loss demonstrated in service does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R.§ 3.303(d) (2012). Further the examiner did not consider and address the Veteran's lay contentions of hearing loss in service and continuing thereafter as was directed in the Board's prior remand. The Board finds that this VA examination is inadequate for entering a final decision. West v. Brown, 7 Vet. App. 70, 77-78 (1994). Therefore, an addendum opinion, based on all relevant evidence, both medical and lay, must be obtained. D. Residuals of a Head Injury Service medical records show that in October 1961, the Veteran reported that he had fallen, struck his head against a wall locker, and had dizzy spells. When he was examined in October 2012 by VA, the examiner stated that there was no evidence of traumatic brain injury (TBI) noted in the file since 1962 and that the diagnosed dementia was recently diagnosed. The examiner went on to state that there is "probably" no relationship between the head injury in 1961 and the current cognitive deficits, which were recent and diagnosed as due to mild Alzheimer's dementia in 2011. A medical opinion based on speculation, does not provide the required degree of medical certainty. See Bloom v. West, 12 Vet. App. 185, 187 (1999). Subsequently an independent medical opinion was obtained in April 2013. The Appeals Management Center obtained this opinion from a Doctor of Podiatric Medicine (DPM). The Veteran's representative has argued that this opinion is inadequate since it was offered by a clinician who did not have expertise in TBI. As the examination worksheet for TBI and the Disability Benefits Questionnaire instructs, only certain medical professionals are considered competent by VA to provide the necessary findings and opinions required for adjudication of such a claim. The worksheet states generally that a "generalist clinician" who has completed VA's TBI training module may perform the examination. The Disability Benefits Questionnaire form is more specific, noting that a diagnosis of TBI may only be made by "a physiatrist, psychiatrist, neurosurgeon or neurologist." The 2013 clinician is identified as a podiatrist and is therefore not competent to render a TBI diagnosis for VA purposes. Thus, another opinion must be obtained from the appropriate medical professional. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. A supplemental medical opinion must be obtained from the VA examiner who provided the January 2013 opinion, if available, to determine the etiology of the Veteran's current back disorder. If the January 2013 VA examiner is not available, then the evidence of record must be reviewed by another appropriate VA examiner. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on a review of the evidence of record, and with consideration of the Veteran's lay statements, the examiner must state whether any diagnosed spine disorder is related to the Veteran's active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. A supplemental medical opinion must be obtained from the VA examiner who offered the January 2013 opinion, if available, to determine the etiology of the Veteran's current bilateral foot disorder. If the January 2013 VA examiner is not available, then the record must be reviewed by another appropriate VA examiner. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records reviewed. Following a review of the pre-service, service, and post-service medical records, and the Veteran's lay statements, the examiner must state whether any currently diagnosed bilateral foot disorder was incurred in or aggravated by service. If a foot disorder is found to have pre-existed military service, the examiner must state the evidence upon which this conclusion was reached. The examiner must then state whether any such foot disorder was permanently aggravated beyond its natural progression during the Veteran's military service. If any current bilateral foot disorder is found not to have pre-existed military service, the examiner must state whether the currently diagnosed bilateral foot disorder is related to the Veteran's military service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. A supplemental medical opinion must be obtained from the VA examiner who offered the January 2013 opinion, if available, to determine the etiology of the Veteran's current bilateral hearing loss. If the January 2013 VA examiner is not available, then the record must be reviewed by another appropriate VA examiner. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Following a review of the evidence of record, the Veteran's military occupational specialty, the Veteran's history of in-service and any post-service noise exposure, the clinical findings, and with consideration of the Veteran's lay statements, the examiner state whether any currently diagnosed bilateral hearing loss is related to the Veteran's military service, to include as due to exposure to acoustic trauma. The examiner must be mindful that although hearing loss may not be shown in service or at separation from service, service connection can still be established if the medical evidence shows that it is actually due to incidents during service. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 5. An addendum opinion regarding the claim for service connection for residuals of a head injury must be provided by "a physiatrist, psychiatrist, neurosurgeon or neurologist" who has not previously reviewed the file. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records reviewed The examiner must provide an opinion as to whether any currently diagnosed disorder was caused by or aggravated beyond the natural progression by the claimed in-service head injury. A complete rationale for all requested opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 6. The requested reports must be reviewed to ensure that they are in complete compliance with the directives of this remand. If any report is deficient in any manner, the RO must implement corrective procedures. 7. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the RO must readjudicate the Veteran's claim on appeal, taking into consideration any newly acquired evidence. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).