Citation Nr: 1539759 Decision Date: 09/16/15 Archive Date: 09/24/15 DOCKET NO. 09-07 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a right shoulder disorder, to include as secondary to a lumbar spine disorder. 2. Entitlement to service connection for bilateral arm and hand disorders, to include as secondary to a lumbar spine disorder. 3. Entitlement to service connection for degenerative disc disease of the lumbar spine, to include as secondary to bilateral knee disorders. 4. Entitlement to service connection for hypertension, to include as secondary to bilateral knee disorders. 5. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E.I. Velez, Counsel INTRODUCTION The Veteran served on active duty from March to October 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran appeared and testified at a personal hearing in May 2013 before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the record. In November 2013, the Board remanded the claim for further development. In a January 2014 rating decision, service connection for tinnitus was granted. Therefore, the issue is no longer on appeal. The Board has reviewed and considered the records contained in the Veteran's Virtual VA and Veterans Benefits Management System electronic files. The issues of entitlement to service connection for depression, to include as secondary to service-connected disabilities, and entitlement to compensation under 38 U.S.C.A. § 1151 for hypertension, secondary to treatment for hepatitis C have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). The issues were previously referred by the Board in the November 2013 remand; however, the AOJ has not adjudicated the issues to date. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in regards to the Veteran's increased rating and service connection claims. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326, are met. In the case of Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims ("the Court") held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. In the November 2013 Board remand, the AOJ was requested to associate with the claim file all ongoing VA outpatient treatment records for the disabilities he is claiming service connection. In a December 2013 report of general information, the AMC stated that a review of the Cleveland VAMC records had been conducted and there were no outstanding treatment records for the Veteran. The Veteran was to be notified of any unsuccessful efforts to obtain the records. In a February 2014 statement, the Veteran stated that he had been treated at the Chillicothe and Columbus Ohio VA Medical Centers. There is no indication that the AMC conducted an additional search for records thereafter and there is no evidence that a search for records form the Chillicothe or Columbus Ohio VAMCs was conducted. Moreover, the Veteran was not provided notice regarding the failure to obtain records form the Cleveland VAMC. Therefore, there has not been full compliance with the Board's November 2013 request. A new remand is needed. The Board also notes that in the November 2013 Board remand, the AOJ was requested to schedule appropriate VA examinations to determine the nature and etiology of the claimed lumbar spine, right shoulder, bilateral upper extremity , and hearing loss disability. The examiner(s) was to provide etiology opinions, including whether the lumbar spine, right shoulder and bilateral upper extremity were caused by or aggravated by service connected disabilities. VA examinations and opinions were conducted and provided in January 2014. In regard to the back, the examiner indicated that the service connected knee disability had not caused the lumbar spine disability, but did not provide an opinion on aggravation. Similarly, in regards to the right shoulder, the examiner did not provide an opinion as to aggravation by a service connected disability, or whether it was caused by or aggravated by his claimed lumbar spine disability. Therefore, a new opinion is needed. In regards to the bilateral upper extremities, a hand VA examination was not conducted. No reason was provided. Moreover, no opinion as to aggravation by a service connected disability, or whether the disability was caused by or aggravated by the lumbar spine, was provided as had been requested in the November 2013 remand. Therefore, a new opinion is needed. In regards to the hearing loss, a VA examination was conducted in January 2014. At the time, the examiner opined that the Veteran's bilateral hearing loss disability was not related to service. The examiner's reasoning primarily relied on the absence of hearing loss in service but also cited the Institute of Medicine (IOM) (2006) study. While ordinarily citing to this study may be considered sufficient to find the reasoning adequate, in the present case, the Veteran has submitted a study by the National Institutes of Health (NIH) which suggests that early age noise exposure may accelerate or aggravate age related hearing loss and which, at least in part, contradicts the IOM 2006 study. The January 2014 VA examiner did not discuss this NIH study. On remand, a new opinion which discusses the NIH study should be obtained. Finally, with regards to hypertension, no etiology opinion was obtained as requested by the November 2013remand. Accordingly the claim must be remanded for an etiology opinion. Accordingly, the case is REMANDED for the following action: 1. The AOJ/MC should obtain all outstanding VA treatment records from the Chillicothe and Columbus Ohio VA Medical Centers for the treatment of the Veteran's claimed lumbar spine, right shoulder, bilateral upper extremities, hypertension and bilateral hearing loss. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any additional records are obtained, return the claim file to the VA examiner(s) who conducted the January 2014 examinations regarding the lumbar spine, right shoulder, hypertension and bilateral hearing loss and request that addendum etiology opinions be obtained as follows: a) In regards to the lumbar spine, is it at least as likely as not (a 50/50 probability or greater) the lumbar spine disability is aggravated by the Veteran's service-connected bilateral knee disabilities (to include altered gait)? b) In regards to the right shoulder disability, is it is at least as likely as not (a 50/50 probability or greater) the shoulder disability is aggravated by the Veteran's service-connected disabilities (to include altered gait) or his claimed lumbar spine disability? c) In regards to the hypertension, whether it is at least as likely as not (a 50/50 probability or greater) the Veteran's hypertension is due to or aggravated by his use of morphine to treat his service-connected knee pain, or is otherwise due to his military service. d) In regards to the bilateral hearing loss disability, discuss the NIH article submitted by the Veteran in May 2013 entitled "Acceleration of Age-Related Hearing Loss by Early Noise Exposure: Evidence of a Misspent Youth." The examiner should discuss how this article changes, if in any way, the opinion rendered in January 2014. The claims folder and electronic records should be made available to the examiner for review. The examiner must state in the examination report that a review of the claim file was accomplished. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible. 3. The Veteran should be scheduled for an examination of the bilateral hands. The claims file and access to electronic records should be made available to the VA examiner for review. The examiner should be directed to elicit a complete history from the Veteran, the pertinent details of which should be recited in the examination report. Following examination, interview with the Veteran, and a review of the available records, the examiner should identify any bilateral upper extremities disabilities, to include the hands. The examiner should answer the following questions: Does the Veteran have bilateral upper extremity disabilities, to include the hands? Please note the diagnoses of tendonitis in the 2007 examination. i. If so, is it is at least as likely as not (a 50/50 probability or greater) the upper extremities disabilities are due to or aggravated by the Veteran's service-connected disabilities (to include altered gait) or his claimed lumbar spine disability? ii. If so, is it at least as likely as not (a 50/50 probability or greater) the upper extremities disabilities are related to the Veteran's active service? 4. Readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, she and her representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant 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). 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 2014). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).