Citation Nr: 1511606 Decision Date: 03/18/15 Archive Date: 03/27/15 DOCKET NO. 13-13 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial compensable rating for a low back disability. 2. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2004 to April 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. Jurisdiction of these matters is with the RO in San Diego, California. In May 2014, the Veteran testified during a videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of that hearing is of record. A transcript of the hearing has been associated with the Veteran's claims file. In July 2014, the Veteran, through his representative, submitted additional evidence along with a waiver of initial RO consideration. The Board has reviewed the Veteran's claims file as well as the record maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) to ensure complete consideration of all the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND During the May 2014 Board hearing, the Veteran testified that since his last VA examination that his bilateral hearing loss disability has worsened. He asserts that he has difficulty hearing people and often asks them to repeat what they have said, and that in order to watch television it must be at a very high volume for him to hear it. The Veteran's last VA examination, to determine the status of his bilateral hearing loss, was in March 2012. Although not overly stale, the Board finds that a new VA examination is warranted to ensure that the Veteran's own complaints are sufficiently considered by a VA examiner. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that the Board should have ordered a contemporaneous examination of the Veteran because a 23-month-old examination was too remote in time to adequately support the decision in an appeal for an increased). The Veteran also testified that the examiner who conducted a VA examination in March 2012 for his low back disability did not utilize the appropriate instrument to measure range of motion of his back and that repetitive range of motion testing was not performed. In June 2014, the Veteran submitted a Disability Benefits Questionnaire (DBQ) filled out from what appears to be a private examiner. It was noted that the Veteran had radicular pain or any other subjective symptoms due to radiculopathy with moderate numbness in the left lower extremity. In response to the question as to the specific nerve roots involved it was noted that the examiner was awaiting MRI results, which were later obtained. However, no finding was provided as to the specific nerve roots involved. The Board finds that the above examination report is incomplete and therefore, inadequate. Thus, the Board finds that a new VA examination is warranted for the Veteran's low back disability due to the above deficiencies, to include providing findings responsive to all applicable criteria, both orthopedic and neurological. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board also notes that there are outstanding records from the Naval Hospital - Camp Pendleton, which are not of record. These records could have an impact on the Veteran's claim. In this regard, the Veteran testified in his May 2014 hearing that he was currently receiving treatment for his low back disability at the Naval Hospital - Camp Pendleton and from private health care providers through his civilian health insurance. See hearing transcript, page 9. The claims file does not contain any record that there has been attempt to obtain these records from Camp Pendleton. Therefore, to ensure all due process due process requirements are met and that the record before the examiner is complete, the AOJ should give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal not yet associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his low back disability and bilateral hearing loss. Specifically request authorization to obtain outstanding medical records from the Naval Hospital at Camp Pendleton. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159(e) 2. Schedule the Veteran for a VA audiological examination to determine the nature and severity of his service-connected bilateral hearing loss. The claims folder, including a copy of this Remand, must be made available to the examiner in conjunction with the examination. A notation to the effect that this record review took place should be included in the examination report. All indicated tests should be accomplished, and all clinical findings should be reported in detail. The examiner should identify auditory thresholds, in decibels, at frequencies of 1000, 2000, 3000, and 4000 Hertz , and the resultant average. A Maryland CNC Test also should be administered to determine speech recognition ability. The audiologist must also describe the effects of the Veteran's service-connected bilateral hearing loss on his occupational functioning and activities of daily living, to include whether his bilateral hearing loss results in marked interference with employment. In doing so, the/ audiologist should indicate, whether there are exceptional or unusual circumstances, peculiar to this Veteran's hearing loss, which are not adequately captured by the rating schedule. The examiner should set forth all examination findings, and provide the complete rationale for the conclusions reached. 3. Schedule the Veteran for a VA examination by an examiner with the appropriate expertise to determine the nature and severity of his service-connected low back disability. The claims folder, including a copy of this Remand, must be made available to the examiner in conjunction with the examination. A notation to the effect that this record review took place should be included in the examination report. All indicated tests should be accomplished, to include an electromyogram and nerve conduction studies if appropriate, and all clinical findings should be reported in detail. If a separate neurological examination is necessary, that examination should be scheduled. The examination should set out orthopedic and neurological findings indicating the extent and severity of the Veteran's service-connected low back disability. (a) In setting out neurological findings, the examiner should identify, and comment on the frequency or extent of all neurological symptoms associated with the service-connected low back disability. All neurological manifestations should be described in detail and the specific nerve affected should be specified, with the degree of paralysis caused by the service-connected disability stated. (b) In setting out orthopedic findings, the examiner should conduct range of motion testing of the lumbar spine, expressed in degrees. The examiner should make specific findings as to whether, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination associated with the low back. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss of the lumbar spine due to pain or any of the other symptoms during flare-ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limitation of motion. (c) The examiner should indicate whether the Veteran has any ankylosis of the lumbar spine; and, if so, the extent of any ankylosis, and whether the ankylosis is favorable or unfavorable. (d) State the number of weeks, if any, during the past 12 months, that the Veteran has had incapacitating episodes, which means a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. (e) The examiner should state whether there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. (f) Provide an opinion concerning the impact of the Veteran's service-connected low back disability on his ability to work and daily living activities. Opine as to whether the Veteran's service-connected low back disability has a marked interference with his employability. The examiner should set forth all examination findings, and provide the complete rationale for the conclusions reached. 4. After ensuring compliance with the above instructions, readjudicate the claims, to include consideration of whether a separate rating for neurological manifestations is warranted for the Veteran's service-connected low back disability. 5. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. No action is required of the Veteran until he is notified by the AOJ; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2014). 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ LESLEY A. REIN Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2014).