Citation Nr: 1331157 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-25 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for sinusitis. 4. Entitlement to service connection for residuals of injury to the lower mandible. 5. Entitlement to service connection for residuals of frostbite to the right lower extremity. 6. Entitlement to service connection for residuals of frostbite to the left lower extremity. 7. Entitlement to service connection for an acquired psychiatric disorder. ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Appellant is a Veteran that had active military service from June 1960 to June 1962. This appeal to the Board of Veterans' Appeals (Board) is from December 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The Veteran has presented medical statements from 2 private physicians (Dr. M. C. in July 2009 and Dr. N.V. in July 2013) that state that the claimed disabilities listed on the title page are related to his military service. However, these two opinions are not adequate to grant service connection for various reasons to include the fact that they do no list definable diagnoses; they are based only on the Veteran's history: and adequate rationales for their conclusions are not provided. VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent signs and symptoms of a current disability; the record indicates the disability or signs and symptoms of the disability may be associated with his active military service (which the Board is taking at face value at this point); but the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McClendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006). In regard to his bilateral hearing loss, a VA examination was conducted in April 2012, which the Board also finds inadequate. First of all the audiologist pointed out that the puretone thresholds were inconsistent with the puretone averages, as such the results were considered invalid. The examiner indicated that he had normal hearing from 1-3k but the inconsistencies in test results suggested that the Veteran was exaggerating responses. However, the examiner did indicate if retesting was feasible and if so, why not. Since, his claims must be remanded for other reasons, he should be given another chance to cooperate in diagnostic testing. The Veteran should be reminded that while VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, he also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Therefore, he must cooperate with diagnostic testing without exaggerating his symptoms. Moreover, the VA audiologist stated that if he did have a hearing loss it was unlikely related to military service. In providing the rationale he indicated that he had normal hearing at separation from military service in 1962. He suggested that the aging process should be considered. The Board also finds this rationale inadequate. The audiogram from the Veteran's May 1962 separation examination revealed pure tone thresholds in his right ear at the frequencies of 500, 1000, 2000, and 4000 Hertz of 15(30), 15(30), 5(15), and 5(10) decibels, respectively; and in his left ear the pure tone thresholds were 15(30), 10(20), 10(20), and 5(10) decibels, respectively. At the time, hearing acuity was measured by audiometric testing using the American Standards Association (ASA) units, which was the standard of measurement of pure tone thresholds by the service departments prior to October 31, 1967. Since October 31, 1967, the service departments measure pure tone thresholds using International Standard Organization (ISO) units. So, for consistency, the pure tone thresholds reported above and listed in parenthesis have been converted from ASA to ISO units. As specifically concerning this claim for bilateral hearing loss, the threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). But before service connection may be granted for hearing loss, it must be of a particular level of severity. For purposes of applying the laws administered by VA, impaired hearing only will be considered to be a ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. According to Hensley, then, when leaving service there was evidence of hearing loss at 500 and 1000 Hertz in the right ear and at 500 Hertz in the left ear. Therefore this audiologist conditional opinion is not based on the correct facts. Therefore further testing and opinion is needed. Furthermore, the examiner made no comments on the Veteran's statements regarding his hearing loss both during and after service discharge. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (wherein the United States Court of Appeals for Veterans Claims (Court) determined an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). The Board inevitably will have the responsibility of assessing not just the competency of the Veteran's lay testimony concerning having experienced continuous symptoms since service, but also the credibility of his lay testimony concerning this to determine its ultimate probative value. (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any additional healthcare provider who has treated him for his claimed disabilities. These should include healthcare and treatment records from Dr. N.V. and Dr. M.C. After securing any necessary authorization from him, by way of completion and submission of VA Form 21-4142, obtain all identified treatment records that are not already in the claims file. He also must be appropriately notified if unable to obtain any identified records. 2. Upon receipt of all additional records, schedule appropriate VA compensation examinations for: (i) a medical opinion concerning whether the Veteran has sufficient hearing loss in either ear, or both, to satisfy the threshold minimum requirements of 38 C.F.R. § 3.385 to be considered an actual ratable disability by VA standards. (ii) if it is determined he has sufficient hearing loss to meet the requirements of this VA regulation, then an opinion is also needed concerning the etiology of this current hearing loss disability, but especially in terms of the likelihood (very likely, as likely as not, or unlikely) his hearing loss was incurred or aggravated during or by his military service . (iii) a medical opinion concerning whether he has sinusitis, a chronic low back disability, chronic disabilities of the lower extremities, chronic disability of the mandible, or an acquired psychiatric disability. (iv) if it is confirmed that he does, then medical nexus opinions also are needed concerning the likelihood (very likely, as likely as not, or unlikely) these current disabilities are related or attributable to his active military service. The examiners should obtain a complete history from the Veteran regarding his claimed disabilities and should remain mindful that, in Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court found that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied exclusively on the absence of evidence in the Veteran's service treatment records (STRs) to provide a negative opinion. The examiners must review the Veteran's claims file, including a complete copy of this remand, and discuss the underlying rationale for all opinions expressed and conclusions reached-if necessary citing to specific evidence in the file. The Veteran is hereby advised that his failure to report to or cooperate fully with these scheduled VA examinations, without good cause, may have detrimental consequences on these pending claims. 38 C.F.R. § 3.655. 3. Then readjudicate these claims in light of the additional evidence. If these claims are not granted to the Veteran's satisfaction, send him a supplemental statement of the case (SSOC) and give him an opportunity to submit additional evidence and/or argument in response before returning these claims to the Board for further appellate consideration. 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). _________________________________________________ KELLI A. KORDICH Acting 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).