Citation Nr: 1328245 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 10-02 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a chest condition. 4. Entitlement to service connection for a lumbar spine disability. 5. Entitlement to service connection for the residuals of a right thumb injury. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran served on active duty from May 1975 to May 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal of October 2008 and March 2010 rating actions by the Department of Veterans Affairs (VA) Regional Office (RO) located in Jackson, Mississippi. In July 2011, while sitting at the RO, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran's claims folder. In June and July 2013, the Veteran submitted duplicative copies of his service treatment records. He also submitted a duplicative copy of a May 2013 VA audiological evaluation report. These records were already a part of his claims file. In January 2012 and February 2013, the Board remanded this case. For the reasons explained below, it is again necessary to return this case to the RO for further development. Thus, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the February 2013 remand, the Board stated that because the Veteran underwent VA examinations in February 2012, before the RO received outstanding VA treatment records, the VA examiners did not have all relevant records available to them when they conducted their examinations and formulated their opinions. Thus, the Veteran needed to be afforded additional examinations. In addition, the Board stated that with respect to the Veteran's claim for service connection for the residuals of a right thumb injury, in the February 2012 VA examination report, the VA examiner provided an opinion concerning arthritis of the Veteran's second, third, fourth, and fifth fingers, but did not specifically address the right thumb. Therefore, an additional examination was needed to clarify whether the Veteran had a current disability of the right thumb, to include any scars, that was related to his in-service right thumb injury. Furthermore, in regard to the Veteran's claim for service connection for bilateral hearing loss, the Board stated that in the February 2012 VA audiological evaluation report, the examiner stated that the Veteran entered service with a left ear hearing loss disability. However, the Board noted that left ear hearing loss by VA standards was not shown at the time the Veteran was examined for entry onto active duty in May 1975. See 38 C.F.R. § 3.385. In addition, the examiner stated that the Veteran's tinnitus was less likely than not related to any hearing loss, but she did not offer an opinion as to whether the Veteran's tinnitus was at least as likely as not related to service. The examiner also reported that the audiological test results were not valid for both ears as the Veteran provided exaggerated responses. Thus, on remand, the Veteran was to be afforded another VA examination and an additional opinion needed to be obtained. Pursuant to the February 2013 remand, the Veteran underwent a VA audiological evaluation on May 7, 2013 at the Biloxi VAMC. Once again, the examiner reported that the audiological test results were not valid for both ears as the Veteran provided exaggerated and inconsistent responses. Nevertheless, the examiner did address the pertinent etiology question. However, the examiner once again reported that the Veteran had hearing loss prior to his entrance into the military. The examiner failed to recognize that although the Veteran may have had some hearing loss upon entrance, he did not have a hearing loss disability for VA purposes upon entrance into the military; he is presumed to have been sound upon entry. Thus, the pertinent question is whether the Veteran currently has hearing loss that is related to his period of service, to specifically include his in-service noise exposure. [The Veteran maintains that he was exposed to loud noises during service and given that his Military Occupational Specialty (MOS) was as a cannon crewman, the Board finds that his statements in regard to his noise exposure credible and consistent with military service. See 38 U.S.C.A. § 1154(b) (West 2002).] The examiner did not address this pertinent nexus question. In addition, with respect to the Veteran's tinnitus, the examiner once again only addressed the question of whether the Veteran's tinnitus was related to his hearing loss, and did not address the pertinent nexus question of whether the Veteran's tinnitus was related to his period of service, to specifically include his in-service noise exposure. In light of the above, it is the Board's determination that the RO has not complied with the instructions from the February 2013 remand. The Board observes that it is obligated by law to ensure that the RO complies with its directives, as well as those of the Court of Appeals for Veterans' Claims (Court). The Court has stated that compliance by the Board and the RO with remand directives is neither optional nor discretionary. Where the remand of the Board or the Court is not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998) While the Veteran underwent a VA examination that was pertinent to his claims for service connection for bilateral hearing loss and tinnitus, with respect to whether he underwent VA examinations that were pertinent to his other claims, as directed by the Board in its February 2013 remand, it appears that there was some confusion over the scheduling of the examinations. On May 15, 2013, the RO received notification from the Biloxi VAMC that the Veteran failed to report to his examinations. However, in a VA Form 21-4138, Statement in Support of Claim, dated in June 2013, the Veteran stated that he had not missed any examinations. It appears that he believed that by attending the May 7, 2013 VA audiological examination, he had attended all scheduled examinations. He also requested that if he had to go to another examination, he wanted the examination to be scheduled at either the Montgomery VAMC or the VAMC in Memphis, Tennessee. In light of the forgoing, the case must be remanded for additional examinations. See Stegall, supra. Any updated VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain a complete copy of the Veteran's VA treatment records, dated since May 2013. 2. AFTER THE ABOVE DEVELOPMENT HAS BEEN COMPLETED, schedule the Veteran for a VA orthopedic examination with either the Montgomery VAMC or the Memphis VAMC. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner is asked to state whether or not the Veteran has a current right thumb disorder, to include any scar. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed right thumb disability had its clinical onset during active service or is related to any in-service event, disease, or injury. In providing this opinion, the examiner should address the in-service complaints and findings of a right thumb injury in March 1979 and the Veteran's lay statements. In particular, the service treatment records show that in March 1979 the Veteran received treatment after having incurred a right thumb injury four days before. It was noted that he had a wound on the lateral aspect over the proximal interphalangeal joint. Mild edema and mild ecchymosis were noted. X-rays of the Veteran's right thumb were reported to be within normal limits. He was assessed with having a possible infection of his right thumb. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed low back disability had its clinical onset during active service or is related to any in-service event, disease, or injury. In providing this opinion, the examiner should address the low back complaints and findings noted in the service treatment records, the Veteran's lay statements, the post-service treatment record(s) dated in September 1986 showing that the Veteran reported experiencing low back pain for three years, and the September 1986 lumbar spine x-ray that showed slight narrowing of the L5-S1 disc space. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Schedule the Veteran for a VA audiological examination with either the Montgomery VAMC or the Memphis VAMC. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. Appropriate testing should include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. The examiner should specifically report the auditory thresholds in the frequencies 500, 1000, 2000, 3000, and 4000 Hertz for both ears. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed hearing loss had its clinical onset during active service or is related to any in-service disease, event, or injury. In doing so, the examiner should comment specifically on the Veteran's military noise exposure and his May 1979 separation examination revealing right ear hearing loss. For the purpose of this examination, the examiner should be instructed that hearing loss did not exist by VA standards at the time the Veteran was examined for entrance onto active duty in May 1975. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed tinnitus had its clinical onset during active service or is related to any in-service disease, event, or injury, including military noise exposure. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Return the claims folder(s) to the February 2012 VA respiratory examiner. If that examiner is not available, then another examiner should be asked to review the claims folder and provide the requested opinion. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner. The report should indicate that this has been accomplished. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed pulmonary/respiratory disorder had its clinical onset during active service or is related to any in-service event, disease, or injury. In providing this opinion, the examiner should address the complaints and findings noted in the service treatment records and the Veteran's lay statements. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, review the VA examination reports to ensure that they are responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 6. Finally, readjudicate the Veteran's claims on appeal. If any claim remains denied, provide the Veteran with a supplemental statement of the case, and after he has had an adequate opportunity to respond, return any such issue to the Board for further appellate review. The Veteran 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). These claims 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). _________________________________________________ P.M. DILORENZO 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).