Citation Nr: 1339436 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 11-04 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a bilateral hip disorder. 2. Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above. In August 2011, the Veteran testified before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the claims file. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. For reasons discussed below, the issues on appeal are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND While the Board regrets the additional delay of the adjudication of this appeal, a remand is required before the claims can be properly adjudicated. The Veteran seeks service connection for a bilateral hip disorder. Review of the record shows that the Veteran has a current diagnosis of osteoarthritis affecting the bilateral hips. See private records from Dr. L.C. dated from 2003 to 2010. At the August 2011 hearing, the Veteran testified that his current bilateral hip disorder was incurred during service after falling/slipping from a B52 tire and landing on his right buttock with his feet in the air. He testified that he limped for the first day after the incident and that his sergeant told him to walk it off because he was young. He also variously reported that, after three days, his leg was numb and he did not have any symptoms. The Veteran further testified that he continued to have problems during and after service and that his symptoms progressively worsened to the point where he could not take a long step or lift his body with his right leg. He testified that he thought he had a back problem but he was eventually told it was his hips, not his back. See August 2011 hearing transcript. The service treatment records (STRs) do not contain any complaints, treatment, or diagnosis of a bilateral hip disorder. Nevertheless, the Veteran is competent to report the events that occurred during service, including that he fell during service and the symptoms he experienced as a result thereof. As such, there is competent evidence of an in-service injury. The post-service evidence shows that the Veteran has a long history of chronic low back pain, with additional complaints of pain in his right buttock and right leg with paresthesias. See October 1999 treatment record from Bassett Healthcare; records from Dr. L.C. dated February 2006 and February 2010. In fact, multiple physicians have noted that the Veteran's hip problems may be related to his low back. The physician who examined the Veteran in October 1999 stated that the Veteran's buttock discomfort may be reproduced during internal rotation of a flexed right hip joint, while Dr. L.C. noted in February 2010, that the Veteran's left hip discomfort/pain may be coming from his back. Notably, in May 2000, Dr. L.C. noted the Veteran fell about eight feet off a B52 during service and stated that, while he cannot say unequivocally that the development of osteoarthritis was secondary to his injury in 1968, he agrees that the injury is possibly a contributing factor. This evidence, while considered competent medical evidence, is no more than speculative and, thus, inadequate to support the grant of service connection. Nevertheless, Dr. L.C.'s statement indicates that the current bilateral hip disability may be related to his in-service injury. Despite the foregoing, however, there is evidence which suggests that the Veteran's post-service symptoms involving his back and hips occurred several years after service. Indeed, the evidence shows that, in October 1999, the Veteran reported the onset of his symptoms 4-5 years prior, with worsening due to a motor vehicle accident in September 1998. Likewise, in May 2000, a physician noted the Veteran incurred an injury to his low back in March 1997 at work, which resulted in pain in his low back, right hip, and right thigh. Nevertheless, under the VCAA, VA is obligated to provide an examination where the record contains competent evidence that the claimant has a current disability or persistent or current symptoms of a disability, there is evidence of an in-service event, injury, or disease, the record indicates that a disability or signs or symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on a claim. 38 U.S.C.A. § 5103A (West 2002); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, as noted, the Veteran has provided competent evidence of an in-service injury involving his back and lower extremities, there is evidence of a current diagnosis of bilateral hip osteoarthritis, and there is a medical opinion which indicates that the current diagnosis may be associated with the in-service injury. As a result, the Board concludes that the Veteran should be afforded a VA examination in order to determine if his current diagnosis of bilateral hip osteoarthritis is etiologically related to service. See 38 C.F.R. § 3.159(c)(4) (2013); Duenas v. Principi, 18 Vet. App. 512 (2004) (holding that a medical examination should be afforded unless there is "no reasonable possibility" that an examination would aid in substantiating the veteran's claim). Therefore, the Board finds that a remand for a medical examination and opinion is necessary in order to render a fully informed decision in this appeal. The Veteran is also seeking to establish service connection for left ear hearing loss. At the September 2011 hearing, the Veteran testified he was frequently exposed to noise during military service and he specifically attributed his noise exposure to flying a minimum of 10 hours per month while on flying status and performing his duties as an environmental systems repairman, which required working on the flight line. The Veteran stated that his ears bothered him when he flew and that his ears eventually started ringing but fluctuated in severity. The Board notes that the Veteran's military occupational specialty of Aircraft or environmental Systems Repairman is considered to have to have a high probability of noise exposure. See Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus, Fast Letter 10-35, Dep't of Veterans Affairs Veterans (Sept. 2, 2010). Therefore, the Veteran's report of in-service noise exposure is considered competent lay evidence of such. The Veteran testified that he was not given a comprehensive medical examination, including an ear exam, at discharge from service. He testified that he worked with a farm machinery company, Niagara Mohawk, after service and that, in approximately July 1973, he was told he had a hearing problem. He testified that he had hearing tests every two to three years until he retired in 2001. The Veteran testified that his current hearing impairment is manifested by speech discrimination problems. The Veteran was afforded a VA audio examination in June 2010, at which time he was diagnosed with right and left ear sensorineural hearing loss. While the VA examiner provided a positive nexus opinion with respect to the Veteran's right ear hearing loss based upon evidence of a 15 decibel threshold shift in the right ear, the VA examiner opined that it is less likely as not that the Veteran's left ear hearing impairment is related to "service noises" because the left ear thresholds did not exhibit a significant threshold shift. While this is considered competent medical evidence, the Board finds that an additional medical examination and opinion is needed. Indeed, while there is no significant threshold shift shown in the left ear at separation from service, the June 2010 VA examiner did not specifically address (1) the Veteran's MOS and (2) whether the post-service evidence indicates that the current left ear hearing impairment is likely related to service. In addition to the foregoing, the June 2010 VA opinion also fails to address whether the current left ear hearing impairment is caused by, a result of, or aggravated by his, now, service-connected right ear hearing loss and/or tinnitus, particularly given his description of his current symptoms. As a result, the Board concludes that the Veteran should be afforded a new VA examination to determine the likelihood that his current left ear hearing impairment is causally related to service, to include the reported in-service noise exposure, or is secondary to service-connected right ear hearing loss and/tinnitus. See 38 C.F.R. § 3.159(c)(4) (2013); Duenas v. Principi, 18 Vet. App. 512 (2004) (holding that a medical examination should be afforded unless there is "no reasonable possibility" that an examination would aid in substantiating the veteran's claim). Therefore, the Board finds that a remand for a medical examination and opinion is necessary in order to render a fully informed decision in this case. In addition to the foregoing, the Veteran has asserted that he received yearly hearing tests while working at Niagara Mohawk farm machinery company from 1973 to 2001. While the Veteran testified that he would attempt to obtain these records after the August 2011 hearing, VA has a duty to assist claimants in obtaining evidence necessary to substantiate a claim, including private treatment records See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Therefore, because the Veteran has identified private records that may be pertinent to this claim but are not yet associated with the claims file, a remand is necessary to obtain these records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Send the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding private medical records, including those from Niagara Mohawk from 1973 to 2001, and that he may also provide any lay statements or other evidence to support his claim that his left ear hearing loss is due to his service. This other evidence may include treatment by other providers, including VA. 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. Schedule the Veteran for an appropriate VA examination to determine if he currently has a bilateral hip disorder that may be related to his military service. The claims file must be made available to the examiner for review in conjunction with the examination and the examination report should reflect that such review was conducted. (a) A diagnosis of any currently manifested bilateral hip disorder should be rendered. In this regard, all indicated tests and studies should be conducted to identify the Veteran's current disability(ies). The examiner must identify the evidence that supports (or does not support) a diagnosis of the conditions listed above. (b) For any bilateral hip disorder diagnosed, is it at least as likely as not (i.e., a probability of 50 percent or more) that the bilateral hip disorder was incurred or is otherwise the result of his military service, to include his reported fall in 1968. (c) In answering the foregoing, the VA physician must consider all lay and medical evidence of record, including all lay evidence of continuity of symptomatology after service. The physician must also note that the Veteran is generally competent to report the events that occurred during service, as well as the nature and onset of his symptoms, and his report of such is considered competent and credible unless otherwise noted. (d) The VA physician should also consider the medical evidence of record, particularly the post-service evidence that shows the Veteran incurred several back injuries after service and that his hip pain may be related to his back condition. Explain why the hearing loss in the right ear is related to noise exposure in service, and why the left is not if this determination is made following examination. (e) A rationale must be provided for each opinion offered. If the foregoing cannot be answered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere speculation, the examiner must clearly specify in the examination report why this is so. 4. Schedule the Veteran for a new VA examination to determine the nature and etiology of his left ear hearing loss. The entire claims file must be made available to the VA examiner and should be reviewed. The examiner should specifically comment on the Veteran's lay assertions that he was exposed to loud noise in service. Advise the examiner that the Veteran's statements should be treated as credible for the purposes of the examination, particularly given his military occupational specialty. (a) The examiner must comment on the type of hearing loss the Veteran currently exhibits, and state whether this type of hearing loss is caused by acoustic trauma, the aging process (if so, is it typical for the Veteran's age), infection, or some other cause. (b) The examiner should opine whether it is at least as likely as not (i.e., a probability of 50 percent) that the Veteran's left ear hearing loss began in service, is related to service. The examiner must address the Veteran's military occupational specialty of Aircraft or Environmental Systems Repairman, which is considered to have to have a high probability of noise exposure. The examiner should also consider the Veteran's post-service noise exposure and the development of his hearing impairment. (c) The examiner should opine whether it is at least as likely as not (i.e., a probability of 50 percent) that the current left ear hearing impairment is proximately due to or a result of his service-connected right ear hearing loss and/or tinnitus. An opinion must be provided with respect to hearing loss and tinnitus. (d) The examiner should also opine whether it is at least as likely as not (i.e., a probability of 50 percent) that the current left ear hearing impairment is aggravated by his service-connected right ear hearing loss and/or tinnitus. An opinion must be provided with respect to hearing loss and tinnitus. (e) Each opinion offered must be supported by a complete rationale. If the foregoing cannot be answered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere speculation, the examiner must clearly specify in the examination report why this is so. 5. After all of the above actions have been completed, readjudicate the claim on appeal. If the claims remain denied, issue to the Veteran and his representative a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise informed, and he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may result in the claim being rated on the evidence of record or denial of the claim. 38 C.F.R. § 3.655 (2013). 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. 2013). _________________________________________________ MARJORIE A. AUER 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) (2013).