Citation Nr: 1753336 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 13-31 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for degenerative disc disease, lumbar spine. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from November 1992 to October 1995. This case comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) Center in Atlanta, Georgia. Jurisdiction currently resides with the RO in St. Petersburg, Florida. The Veteran appeared before the undersigned Veterans Law Judge in a Board hearing in May 2017. The transcript of the hearing is associated with the electronic claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides appropriate process and assistance in developing the claim prior to final adjudication. The Veteran contends that his lower back disability has increased in severity. Recent medical records also indicate that the Veteran has been complaining of increased numbness and pain related to his service-connected lower back disability, which could indicate possible radiculopathy. The Veteran was last afforded a VA examination for his lower back disability in September 2011. While mere passage of time, alone, since an otherwise adequate examination, does not obligate VA to have the Veteran reexamined simply as a matter of course, in the present case a new examination is warranted. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). The Veteran's chiropractic records from August 2011 document that the Veteran exhibited 30 degrees flexion of the thoracolumbar spine which would indicate a 40 percent disability rating, whereas the Veteran is currently rated at 10 percent for his lower back. These records however do not include a complete examination which uses criteria by which the VA rates the Veteran's lower back disability such as range of motion in degrees using weight bearing and non-weight bearing, or the presence of ankylosis. As such, a VA examination is required to examine the Veteran for current severity of his lower back disability to include analysis of the medical treatment records submitted. Any new VA examination should adhere to the guidelines of recent case law. The Board observes that a recent opinion issued by the Court of Appeals for Veteran Claims (Court) is potentially applicable to the current appeal. See Correia v. McDonald, 28 Vet. App. 158 (2016). Correia provides a precedential finding that the final sentence of 38 C.F.R. § 4.59 (2016) requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Veteran should also be asked to identify any outstanding treatment records for his back disability. With respect to the claims for service connection, VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability, the record indicates that the disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. See 38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4) (2017). The evidentiary requirement that the record indicates that the claimed disability may be associated with active service is a "low threshold." McLendon, 20 Vet. App. at 83. On remand, the Veteran should be afforded a VA audiological examination related to his claims for bilateral hearing loss and tinnitus and their relationship, if any, to his military service. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any outstanding treatment records (to include any private, VA, or military) for his lower back disability, hearing loss, or tinnitus. With any assistance required from the Veteran, make appropriate efforts to obtain any outstanding treatment records identified by the Veteran. 2. Thereafter, schedule the Veteran for a VA examination to determine the current severity of his service-connected lower back disability, to include evaluation of the Veteran's symptoms of radiculopathy, by an appropriate medical professional. All appropriate tests and studies shall be conducted. All relevant electronic records, including a copy of this remand, must be sent to the examiner for review. The examination should be conducted in accordance with the current disability benefits questionnaire, to include compliance with 38 C.F.R. § 4.59 as interpreted in Correia. The examiner should conduct a thorough examination of the Veteran's service-connected back disability and report on the nature, severity, and extent of any associated symptomatology related to the back disability. This should include a report of the ranges of motion of the spine (in degrees) on both active motion and passive motion and in both weight-bearing and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also specifically answer the following question: What is the extent of any additional limitation in motion (in degrees) of the spine due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use? The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran, as such is required by the law as interpreted by the Court. The examiner must provide reasons for any opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his disabilities. 3. Arrange for the Veteran to be examined by a VA audiologist to determine if the Veteran has bilateral hearing loss disability and tinnitus. All relevant electronic records, including a copy of this remand, must be sent to the examiner for review. Based on a review of the entire record and puretone audiometric testing with Maryland CNC speech discrimination testing, the examiner should note all pertinent features and findings needed to apply the relevant rating criteria. Specifically, the examiner should note all results of puretone audiometric testing, with puretone average thresholds and Maryland CNC speech discrimination scores (in percentages) for both ears, as well as any functional impairment reported. Any medical opinions offered must include a complete rationale. The examiner should answer the following questions: (a) Is it at least as likely as not (i.e. 50% or greater) that any hearing loss demonstrated by the Veteran is related to active service? (b) Is it at least as likely as not (i.e. 50% or greater) that any tinnitus demonstrated by the Veteran is related to active service? The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his disabilities. 4. Thereafter, readjudicate the claims remaining on appeal. If the benefits sought remain denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should thereafter be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ DAVID L. WIGHT 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) (2017).