Citation Nr: 1800205 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-00 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for arthritis. 4. Entitlement to service connection for degenerative disc disease of the back. 5. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD C. Biggins, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. This appeal to the Board of Veterans' Appeals (Board) is from April 2009, July 2009, and January 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a November 2016 Travel Board hearing. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran is seeking entitlement to service connection for bilateral hearing loss and tinnitus. The record includes a June 2009 VA opinion concluding that due to the Veteran's occupational noise exposure after military service and history of middle ear disease as a child his current bilateral hearing loss and tinnitus are not etiologically related to his military noise exposure. The Board finds the June 2009 VA opinion to be inadequate. On the Veteran's October 1965 enlistment examination, there is no preexisting ear condition referenced. Thus, the presumption of soundness has attached. However, a September 1967 report of medical examination includes the Veteran's report of having his ear operated on at age 10. To rebut the presumption of soundness, there must be clear and unmistakable evidence both that an ear disability preexisted service and was not aggravated by service. The June 2009 VA opinion provider noted the Veteran's middle ear disease prior to his active service but did not use the correct standard of "clearly and unmistakably" when providing an opinion. In addition a VA audiological evaluation does not appear to have been associated with the Veteran's claims file and in the Veteran's November 2016 hearing he indicated his hearing loss has increased in severity. As such, a new VA examination and opinion as to the etiology of the Veteran's bilateral hearing loss and tinnitus must be obtained on remand. The Veteran is seeking entitlement to service connection for arthritis and degenerative disc disease of the back. The Veteran has not yet been provided a VA examination in connection with his claims. The Veteran's VA treatment records note he has current arthritis and degenerative disc disease. The Veteran testified at his November 2016 Board hearing that his arthritis and degenerative disc disease were etiologically related to his service because he completed a lot of heavy lifting and sustained an injury to his leg and groin after jumping off a "five ton." The Veteran indicated he did not report these symptoms during his active service because he was young and did not want to complain. The Veteran reported having these symptoms intermittently since his active service. Given the Veteran's current arthritis and degenerative disc disease and the Veteran's testimony of an in-service injury a VA examination is required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition it appears the Veteran continues to receive VA treatment, as such, any and all outstanding VA treatment records must be obtained on remand and associated with the Veteran's claims file. A November 2017 Report of General Information in the record notes that the RO was in contact with the Veteran's representative and it was agreed that the RO would allow the Veteran 60 days to recover from heart surgery before scheduling his VA PTSD examination. Additional records show that surgery was performed in early November. Therefore, the Board must defer the Veteran's claim of entitlement to service connection for psychiatric disability until all development; to include his pending VA PTSD examination is completed. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any and all outstanding VA treatment records. 2. After all records have been associated with the claims file, schedule the Veteran for an appropriate VA examination in connection with his claim for entitlement to service connection for bilateral hearing loss. The claims file and copies of all pertinent records must be made available to the examiner for review. (a) Does the evidence of record clearly and unmistakably show that the Veteran had a bilateral hearing loss disability that existed prior to his entry onto active duty? The examiner should consider and discuss as necessary the following: i. A September 1967 report of medical examination noting the Veteran reported having his ear operated on at age 10; and ii. The June 2009 VA opinion noting the Veteran's history of middle ear disease. (b) If the answer is yes, does the evidence of record clearly and unmistakably show that the preexisting hearing loss disability was not aggravated by service or that any increase in disability was due to the natural progression of the disease? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms beyond its natural progression. Please identify any such evidence with specificity. (c) If the answer to either (a) or (b) is no, is it at least as likely as not that the Veteran's bilateral hearing loss is etiologically related to his active service? A full rationale must be provided for all stated medical opinions that reflect consideration of all lay and medical evidence. 2. After all records have been associated with the claims file, schedule the Veteran for an appropriate VA examination in connection with his claim for entitlement to service connection for tinnitus. The claims file and copies of all pertinent records must be made available to the examiner for review. (a) Does the evidence of record clearly and unmistakably show that the Veteran had tinnitus that existed prior to his entry onto active duty? The examiner should consider and discuss as necessary the following: i. A September 1967 report of medical examination noting the Veteran reported having his ear operated on at age 10; and ii. The June 2009 VA opinion noting the Veteran's history of middle ear disease. (b) If the answer is yes, does the evidence of record clearly and unmistakably show that the preexisting tinnitus was not aggravated by service or that any increase in disability was due to the natural progression of the Veteran's tinnitus? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms beyond its natural progression. Please identify any such evidence with specificity. (c) If the answer to either (a) or (b) is no, is it at least as likely as not that the Veteran's tinnitus is etiologically related to his active service? A full rationale must be provided for all stated medical opinions that reflect consideration of all lay and medical evidence. 4. After the completion of step 1 arrange for the Veteran to undergo an appropriate VA examination for arthritis. The claims file should be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. Based on the examination and review of the record, the examiner should address the following: Is it at least as likely as not that the Veteran's arthritis is etiologically related to his active service? 5. After the completion of step 1 arrange for the Veteran to undergo an appropriate VA examination for degenerative disc disease of the back. The claims file should be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. Based on the examination and review of the record, the examiner should address the following: Is it at least as likely as not that the Veteran's degenerative disc disease of the back is etiologically related to his active service? 6. After completing the above and any other development deemed necessary (to include any PTSD examination that was scheduled prior to the Veteran's November 2017 heart surgery), readjudicate the Veteran's claims based on the entirety of the evidence. If any benefit sought on appeal remains denied, he and his representative should be provided with a supplemental statement of the case. Allow the appropriate time for response then return the case to the Board. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ M.E. LARKIN 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).