Citation Nr: 1803990 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-03 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for low back condition. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert A. Elliott II, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, that denied 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). With regard to the bilateral hearing loss claim, the Veteran was afforded a VA examination in December 2012. The examiner diagnosed bilateral hearing loss and opined that the Veteran's hearing loss was as less as likely as not caused by events in military service because "the [V]eteran had normal hearing sensitivity in both ears at the time of his separation exam in 1971." Further, the examiner indicates that the Veteran's claim file was not reviewed prior to making its determination. The absence of in-service evidence of some degree of hearing loss (per Hensley v. Brown, 5 Vet. App. 155 (1993), during service is not always fatal to a service connection claim. The Board concludes that the December 2012 VA examination is not adequate for the purpose of adjudicating the Veteran's claim for bilateral hearing loss. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With regard to the low back condition claim, in an August 2011 private medical opinion, Dr. K.L.P. notes a diagnosis of "severe diffuse degenerative joint disease throughout the entire spinal column" as shown by "X- ray". He opined that it is "highly probable that [the Veteran's] military career produced his present condition." The private opinion, however, did not include any rationale for the opinion proffered. The Board finds that a supplemental opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's electronic claims file any outstanding relevant VA treatment records. 2. Obtain a medical opinion addressing the etiology of the Veteran's bilateral hearing loss disorder. It is left to the examiner's discretion whether to reexamine the Veteran. The claims file, to include a copy of this Remand, should be reviewed by the examiner. Upon review of the record, the examiner should address the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss disability had its onset in, or is otherwise related to the Veteran's period of active duty service? 3. Obtain a medical opinion addressing the etiology of the Veteran's low back disorder The claims file, to include a copy of this Remand, should be reviewed by the examiner. It is left to the examiner's discretion whether to examine the Veteran. Upon review of the record, the examiner should address the following: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's low back disability had its onset in, or is otherwise related to the Veteran's period of active duty service? b) The positive opinion furnished by Dr. K.L.P. and the Veteran's lay statements concerning his duties during active service. A complete rationale for any opinion expressed must be provided. 4. Re-adjudicate the issues on appeal. If the benefits sought are denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).