Citation Nr: 1341950 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 10-35 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois 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 back disability, claimed as scoliosis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran, A.P., and T.P. ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from March 1963 to October 1964. This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the claims on appeal. In May 2013, the Veteran, A.P., and T.P., testified via videoconference before the undersigned Veterans Law Judge (VLJ), seated at the Board's Central Office in Washington, D.C. The Veteran submitted additional evidence at that time, with a waiver of RO consideration of the same. A transcript of the hearing has been 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 The Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus on the basis that he was exposed to noise during active service, to include training with rifles and grenades and making metal identification cards using a loud machine in a cramped room. He asserts entitlement to service connection for a back disability, claimed as scoliosis, on the basis that he injured his back during service while carrying heavy packs and marching and sitting at a desk all day. During his Board hearing, the Veteran asserted that he was in receipt of disability benefits from the Social Security Administration (SSA), for his knees and back. Records related to his claim are not associated with the claims file and should be obtained. Also during his Board hearing, the Veteran asserted that he was attempting to obtain a nexus opinion from his physician as to his claim of entitlement to service connection for a back disability. He also reported that he sought audiological treatment either 10-15 years ago or 20-25 years ago, in Hinsdale, and his representative agreed to assist the Veteran in attempting to obtain such records. The VLJ agreed to hold the record open for 60 days to allow the Veteran to attempt to obtain such records. To date, no such records have been submitted. The Board has reviewed the October 2008 VA opinion that the Veteran's scoliosis was a developmental condition not related to service and that degenerative changes, including his herniated disc at L4-5, are related to his dextroscoliosis; and the July 2010 VA opinion that the Veteran's active service did not cause additional stressors or acceleration of development of spinal degenerative disc disease. However, as noted at the Board hearing, no opinion has yet been rendered as to whether the Veteran's scoliosis, a congenital defect or disease, was aggravated by active service. On remand, such an opinion should be obtained. The Board notes that the VA examiner, in June 2010, opined that the Veteran entered and separated from active service with bilateral hearing acuity within normal limits, without any significant threshold shifts. However, it is unclear if the examiner considered the results of such audiometric testing, conducted prior to November 1, 1967, converted to standards set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). On remand, a clarifying opinion considering converted in-service audiometric test results, as well as any newly-received private audiological treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file all relevant records related to his SSA disability benefits claim, to include any treatment records upon which SSA based its decision. Any and all responses, including negative responses, must be added to the claims file. If a negative response is received from the SSA, the Veteran must be duly notified and provided an opportunity to submit such records. 2. Contact the Veteran and provide him VA Forms 21-4142, Authorization and Consent to Release Information to VA, in order to obtain any relevant outstanding private treatment records. Specifically inform the Veteran that the Board seeks the private nexus opinion as to his back disability and the private audiological records from a provider in Hinsdale that he noted during his Board hearing. Advise the Veteran that he may submit his private treatment records if he so chooses. Any and all responses, including negative responses, must be added to the claims file. If a negative response is received, the Veteran must be duly notified and provided an opportunity to submit such records. 3. Forward the Veteran's claims file to the VA examiner who conducted the spine examination in October 2008 and who submitted the addendum opinion in July 2010, or a suitable substitute. If any examiner determines that another VA examination is required, so schedule the Veteran. The examiner must resolve the following inquiries: (a) Is the Veteran's scoliosis of the thoracic spine a congenital disease or defect? (b) If it is determined it is a congenital disease, what is the likelihood (very likely, as likely as not, or unlikely) this congenital disease was aggravated by the Veteran's active service? (c) If it is determined instead this is a congenital defect, what is the likelihood (very likely, as likely as not, or unlikely) this congenital defect was subject to a superimposed disease or injury by the Veteran's active service? In this regard, the examiner must consider: (1) the Veteran's in-service complaints of back pain and treatment for urinary complaints from November 1963 to January 1964; (2) his lay statements describing his in-service marching with heavy packs and sitting at a desk all day; (3) his post-service March 1967 assertion that he slipped and wrenched his back while working at a plant; and (4) his post-service September 1967 fusion of the thoracic spine. 4. Forward the Veteran's claims file to the VA examiner who conducted the audiological examination in June 2010, or a suitable substitute. If any examiner determines that another VA examination is required, so schedule the Veteran. The examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's bilateral hearing loss and tinnitus were incurred in or aggravated by active service, or are otherwise related to service. The examiner must consider: (1) the results of the Veteran's audiometric testing conducted on entry and separation, converted to ISO-ANSI standards; (2) the Veteran's lay statements as to the noise he incurred during service while training with weapons and grenades and making metal identification cards using a noisy machine in a cramped space; (3) his in-service otitis media of the right ear in September 1963; (3) his post-service noise exposure working in a factory and driving trucks; and (4) his post-service right ear pathology, including his May 1986 otosclerosis and multiple stapedectomy procedures. It is essential the examiner(s) discuss the rationale of the opinions, whether favorable or unfavorable, based on clinical findings and information obtained from review of the record, if necessary citing to specific evidence in the file. If the requested opinions cannot be provided without resorting to mere speculation, the examiner(s) should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. To facilitate providing responses to the questions posed, the claims file must be made available to the examiner(s) for consideration of the pertinent history. 5. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claims considering any additional evidence added to the record. If any action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the 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. 2013). _________________________________________________ S. L. Kennedy 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).