Citation Nr: 1328065 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-07 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for diabetes mellitus with bilateral lower extremity neuropathy, to include as secondary to a service-connected disability. 4. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1978 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran testified at an October 2012 hearing by the undersigned Veterans Law Judge via videoconference. A transcript of that hearing is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required. The Board remanded the case in January 2013 and requested that the RO obtain and associate with the claims file any outstanding VA treatment records from the VA Medical Center (VAMC) in Spokane, Washington and any associated outpatient clinics dated from September 2008 to November 2008, as well as all up-to-date treatment records from the Spokane VAMC from May 2012 to present. On remand, the RO updated the Veteran's treatment records from the Spokane VAMC dated from May 7, 2012 to February 14, 2013. However, the record still does not include the VA treatment records from the Spokane VAMC dated from September 2008 to November 2008. It appears that the RO attempted to upload the VA treatment records dated from September 4, 2008 to November 28, 2008 on the Veteran's electronic claims file, but instead uploaded duplicate treatment records dated from May 2012 to February 2013. RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). As this evidence is potentially relevant to the issues on appeal, it must be obtained before the Board can proceed with the merits of the claims. Thus, the case must be remanded again for the RO to obtain and associate with the claims file any outstanding VA treatment records. In addition, pursuant to the Board's January 2013 remand, the Veteran was provided a VA audiological examination in March 2013; however, the Board again finds it inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate). The examiner opined that the Veteran's hearing loss was not caused by or a result of an event in military service. In support of this opinion, the examiner provided the following rationale: Clinically, hearing loss is denied as being present when any threshold is 30dB or greater. As measured by both VA standards and clinical standards, the [V]eteran had normal hearing sensitivity in both ears at the time of his separation exam on March 9, 1993. The [V]eteran's MOS [(military occupation specialty)] has a low probability for exposure to hazardous noise, and although he reports that [he] served in a combat zone, according to the American College of Occupational and Environmental Medicine, hazardous noise is no longer a threat to hearing once the exposure to noise is discontinued. Back pain is not a known cause or a known aggravating factor regarding hearing loss. However, in its January 2013 remand, the Board found that the absence of hearing loss at that time of service separation is not fatal to a claim for service connection, unless a late onset of hearing loss is not medically plausible. 38 C.F.R. § 3.385 does not preclude service connection for hearing loss that first met the regulation's requirements after service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Additionally, the March 2013 examiner simply did not consider the Veteran's lay statements but primarily relied on the previous VA examination reports. To that effect, the Veteran reported at the July 2011 VA examination that although he was not directly involved in combat, he had noise exposure from gun firings and field training exercises. Further, the Board found that extensive noise exposure in service was consistent with the circumstances of the Veteran's service in this case as he served in the Army for over 15 years, including service during the Gulf War. However, the March 2013 examiner simply stated that "the [V]eteran's MOS has a low probability for exposure to hazardous noise...although he reports that [he] served in a combat zone." Finally, the examiner did not address the question of whether the Veteran's bilateral hearing loss or tinnitus is either proximately caused by or proximately aggravated by his medication for his service-connected low back muscle spasms. Given the deficiencies in the March 2013 VA examination, another VA medical opinion is required to adequately decide the merits of the claims of service connection for bilateral hearing loss and tinnitus. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination). As multiple appealed claims for service connection have not yet been adjudicated, the Board cannot adjudicate the claim for a TDIU and it must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless all issues have been considered). A VA medical opinion was obtained in March 2013 in connection with the Veteran's TDIU claim. The March 2013 VA examiner opined that the Veteran's service-connected back condition makes all physical work impossible. However, the Board finds that this opinion is insufficient because the examiner does not address the combined effect of all the Veteran's service-connected disabilities on his employability or discuss whether the Veteran would be able to secure or follow a substantially gainful occupation in a sedentary capacity. Therefore, on remand, such a supplemental medical opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records from the VAMC in Spokane, Washington and any associated outpatient clinics dated from September 2008 to November 2008. All records and/or responses received should be associated with the claims file. 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 the 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 the Veteran is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Forward the Veteran's claims file to a VA examiner of the appropriate expertise other than the March 2013 audiologist. A copy of this Remand and the entire claims file must be made available to and reviewed by the VA examiner. Pertinent documents should be reviewed, including service treatment records and the Veteran's statements, to include his testimony at his October 2012 Board hearing. The examiner should then offer an opinion as to whether the Veteran's bilateral hearing loss or tinnitus is at least as likely as not (i.e. 50 percent probability or more) etiologically related to his period of active military service, to include military noise exposure from gun firings and field training exercises. In rendering the requested opinion and rationale, the examiner must note that the fact that the Veteran's in-service examination was within normal limits is not necessarily fatal to the Veteran's claims and cannot be the only basis by which to reject a possible nexus to service. The examiner must also note that the reported audiometric findings on the Veteran's March 1993 service separation audiogram should be reviewed and that applicable case law establishes that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensely v. Brown, 5 Vet. App. 155, 157 (1993). If the examiner's opinion is negative, then the examiner should also provide an opinion as to whether the Veteran's bilateral hearing loss or tinnitus is either proximately caused by or proximately aggravated by one of his service-connected disabilities, specifically including the medication for his service-connected low back disability. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. All necessary diagnostic testing should be conducted. All opinions must be supported by a complete rationale. 3. After completing the above development, and any other development deemed necessary, readjudicate all pending service connection claims on appeal taking into consideration any newly acquired evidence. Thereafter, forward the Veteran's claims file to the VA examiner who provided the March 2013 opinion, or if unavailable, another examiner with the appropriate expertise in the areas of the Veteran's service-connected disabilities. Ask the examiner to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities, alone or in combination, prevent him from securing or following a substantially gainful occupation consistent with his education and occupational experience, specifically, in a sedentary capacity. Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The examiner is reminded that consideration should not be given to the effect, if any, on his employability of the Veteran's age or any nonservice-connected disabilities. The opinion must be based on the review of the claims file, and a complete rationale must be provided for any opinions expressed. 4. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claims. Failure to report for a VA examination without good cause may result in denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). 5. After completing the above, readjudicate the remaining issue of entitlement to a TDIU. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. The appellant 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). This claim must be afforded expeditious treatment. The law requires that all claims that are 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).