Citation Nr: 1801089 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-03 307A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a lumbar spine disorder, to include L5-S1 central herniation and degenerative disc disease. REPRESENTATION Veteran represented by: American Legion WITNESS AT HEARING ON APPEAL Veteran and G.G. ATTORNEY FOR THE BOARD E. Kunju, Associate Counsel INTRODUCTION The Veteran served in the United States Navy Reserve from November 2004 to April 2006 and in the United States Air Force Reserves from April 2006 to November 2009 to include a period of active duty for training (ACDUTRA) from August 2006 to December 2006. This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In September 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. This case consists of documents in the Veterans Benefits Management System (VBMS) and in Legacy Content Manager (LCM). Documents in LCM are duplicative of those in VBMS or are irrelevant to the issues on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND First, a remand is necessary in order to verify the Veteran's periods of ACDUTRA and inactive duty for training (INACDUTRA) while he was in the Navy Reserve and Air Force Reserves. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). The term active service includes the following: active duty; any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty while performing ACDUTRA, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred or aggravated in the line of duty while performing INACDUTRA, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during INACDUTRA. 38 U.S.C. § 101(24) (2012); 38 C.F.R. § 3.6(a). It appears that the Veteran served in the Navy Reserve from November 2004 to April 2006 and in the Air Force Reserves from April 2006 to November 2009; however, the only period of service that has been verified is a period of ACDUTRA from August 2006 to December 2006. The Veteran's April 2006 reenlistment document listed previous active military service of 1 year. The Veteran's DD-214 noted 29 days prior active service. Therefore, all periods of ACDUTRA and INACDUTRA must be verified and a summary of his verified dates of service must be associated with the claims file. Additionally, although Air Force service treatment records appear to be associated with the claims file, it does not appear that service records from the Veteran's period of service in the Navy Reserve are associated with the claims folder. Second, remand is required regarding the claim for hearing loss to obtain an adequate VA examination. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A central issue in determining the probative value of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. Stefl, 21 Vet. App. at 124. Regarding the bilateral hearing loss, a new VA examination and opinion is necessary to clarify whether the Veteran has a diagnosis of bilateral hearing loss and whether such is related to his service. The Veteran was provided a VA audiological examination in December 2011. The VA examiner found there was not a bilateral hearing loss for VA purposes. At the September 2017 Board hearing, the Veteran testified that his hearing loss has worsened since the examination, such that it is possible hearing loss for VA purposes now exists. The Veteran also testified that his military occupational specialty (MOS) as a crew chief in aerospace maintenance was listed as highly probable for noise exposure. The Board finds that as the last VA examination was over 6 years ago, the Veteran should be afforded another one to determine if his hearing loss has risen to the level sufficient for VA purposes. Third, remand is required regarding the claim for a back disorder in order to afford the Veteran a VA examination. A VA examination is required when (1) there is evidence of a current disability, (2) evidence establishing an 'in-service event, injury or disease,' or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" related to service is a low threshold. McLendon, 20 Vet. App. at 83. Service treatment records indicate a history of back complaints during reserve service with diagnoses including L5-S1 degenerative disc disease and lumbar segmental dysfunction. He was medically disqualified from the Air Force Reserves due to L5-S1 central herniation and degenerative disc disease. At the September 2017 Board hearing, the Veteran testified that he first experienced back issues when he was in technical school from August to December 2006 (a period of ACDUTRA) from the cramped conditions of working on a C-130. The Veteran testified that in January 2007, he was placed on a restricted profile where he was limited to no more than a one mile walk. The Veteran testified that in February 2007, he was forced to do a 3 mile walk which led to his need for an L5-S1 fusion of the back. The Veteran's reserve treatment records indicate multiple complaints of back issues between 2007 and 2008 (that appear to have begun 3 to 4 years earlier) including a December 2007 and February 2007 treatment records indicating the Veteran's physical restrictions and complaints of excruciating back pain after a forced 3 mile walk. The Veteran submitted a letter from Dr. JSH who noted he saw the Veteran in 2006 for his back issues. Dr. JSH opined that the forced 3 mile march and increased physical activities above and beyond the Veteran's capabilities and restrictions exacerbated and aggravated his preexisting condition. However, a VA examination and opinion is needed to address the Veteran's period of service. Accordingly, the case is REMANDED for the following action: 1. Contact any and all sources necessary to confirm the Veteran's active duty service and Reserve service. The AOJ must contact the Navy Personnel Command (NPC), the Air Reserve Personnel Center (ARPC), National Personnel Records Center (NPRC), the Records Management Center (RMC), the Defense Enrollment Eligibility Reporting System (DEERS), and the Veteran's Reserve unit(s). The RO must provide a precise listing of the Veteran's specific periods of active duty, active duty for training, and inactive duty for training. A retirement points summary will not suffice. 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. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. After the Veteran's service dates are confirmed and documented for the file, contact the NPC, ARPC, NPRC, the RMC, the DEERS, and the Veteran's unit(s), or any other appropriate entity to obtain all service personnel and treatment records from all periods of service. 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. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 3. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and his representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his bilateral hearing loss. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The audiologist must provide an opinion as to whether any current hearing loss at least as likely as not (50 percent probability or greater) had (1) onset during active service or ACDUTRA or is otherwise related to a period of ACDUTRA, or (2) is due to an injury incurred in a period of INACDUTRA. The examiner is requested to review the dates of service as compiled by the RO. In rendering the above opinion, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his lumbar spine disorder, to include L5-S1 central herniation and degenerative disc disease. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the claimed lumbar spine disorder, to include L5-S1 central herniation and degenerative disc disease, was caused by an injury incurred in a period of INACDUTRA, or due to disease or injury incurred in a period of ACDUTRA. The examiner is requested to review the dates of service as provided by the RO. b) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the claimed lumbar spine disorder, to include L5-S1 central herniation and degenerative disc disease, was aggravated by an injury incurred in a period of INACDUTRA, or due to disease or injury incurred in a period of ACDUTRA. The examiner is requested to review the dates of service as provided by the RO. The examiner must address the following: 1) November 2004 report of medical examination indicating normal spine and corresponding report of medical history indicating no to recurrent back pain; 2) March 2006 report of medical history indicating no back surgery or no ruptured or bulging disc; 3) reserve treatment records indicating multiple back complaints including the December and February 2007 treatment records where the Veteran stated he had excruciating back pain after a forced 3 mile walk; 4) the Veteran's December 2011 statement that his job and physical training over the period of enlistment aggravated his injury and September 2011 statement that he had herniated discs and a subsequent L5-S1 fusion due to carrying heavy boxes, working on airplanes, and constant pounding from physical examinations; 5) the September 2017 Board hearing transcript; and 6) the letter from Dr. JSH that the forced 3 mile duties and increased physical activities above and beyond the Veteran's capabilities and restrictions exacerbated and aggravated his preexisting condition. 6. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 7. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 8. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ K. MILLIKAN 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).