Citation Nr: 1804606 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-17 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for left hearing loss. 2. Entitlement to service connection for back condition, to include mild scoliosis, degenerative change of the thoracic spine, and multilevel degenerative disc disease. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1981 to June 1988. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Veteran testified before the undersigned Veterans Law Judge during an April 2014 personal hearing; a transcript is of record. In a June 2015 decision, the Board dismissed the appeal of the issue of entitlement to service connection for degenerative disc disease C5-6, denied the entitlement to service connection for bilateral hearing loss, and remanded the issue of entitlement to service connection for the back disability and pes planus. Subsequently, entitlement to service connection for bilateral pes planus was granted in a June 2016 rating decision. The Veteran appealed the denial of entitlement to service connection for hearing loss in his left ear to the United States Court of Appeals for Veterans Claims (CAVC). In an October 2016 memorandum decision, the CAVC set aside and remanded the June 2015 Board decision denying the service connection for left ear hearing loss. The case has been returned to the Board for further development and readjudication on all of the remaining issues in this appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A remand is required again in this case to ensure that the Veteran is given every consideration. The Board finds that no VA examinations of record are adequate in determining entitlement to service connections for both issues in this appeal. As for the issue of service connection for left ear hearing loss, another examination is needed because the October 2011 VA audiology examination provides no supporting rationale for its conclusion that the hearing loss was not related to noise exposure from service and also because the Veteran proposes, via his representative, a different and additional interpretation of the audiology in-service examination results. First, as the CAVC found in its October 2016 decision, the Board finds that the October 2011 VA audiology examiner stated the conclusion without providing rationales. In particular, the examiner based the conclusion on the fact that audiology examinations were all normal throughout the service and the current level of hearing loss was considered mild. The examiner did not evaluate the potential, long-term impact of the military noise exposure as a mechanic during service, even though the examiner was aware of the exposure. Second, the October 2011 examiner states that audiology examinations from 1981, 1982, 1985, and 1986 all showed normal hearing in both ears. However, the Veteran asserts that those in-service audiology examinations documented deteriorating threshold shifts and claims that this supports his post-service hearing loss. The Board finds that a medical opinion is needed to ascertain the validity of the Veteran's assertion. Also for the issue of service connection for the Veteran's back condition, another examination is needed because the VA examinations of file did not address one or more back disabilities and also because a new theory of entitlement with respect to the Veteran's back condition arose since the most recent examination. First, the September 2015 VA examination did not evaluate the impact of the Veteran's service-connected bilateral knee disabilities on his back condition, to include degenerative change of the thoracic spine and multilevel degenerative disc disease as required by the June 2015 remand. Second, no VA examinations conducted thus far address whether the Veteran's recently service-connected pes planus caused or aggravated his back condition. Indeed, the October 2011 VA examination indicates that the Veteran has abnormal gait due to pes planus and genu valgus knees as well as hip strain affecting the back. Since service connection for the Veteran's pes planus was granted in June 2016, this new theory of entitlement to service connection for the back condition as secondary to pes planus must be addressed in a new examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination to assess the etiology of his thoracolumbar spine disabilities. Provide the examiner with access to the Veteran's claims file in conjunction with the examination. All indicated tests must be performed. The examiner should provide an opinion, based on the record, regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran's back disability began in service, was caused by service, or is otherwise related to service, to include the Veteran's reported fall while working with a howitzer in Germany. If the above opinion is negative, then the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's mild scoliosis, degenerative change of the thoracic spine, and multilevel degenerative disc disease was either caused or aggravated beyond its natural progression by any service-connected disabilities, alone or in combination, including his service-connected pes planus and bilateral knee disabilities. A complete and fully explanatory rationale must be provided for any and all opinions expressed. If the examiner finds that the requested opinion cannot be rendered without resorting to speculation, he or she should so state, and should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record (i.e., additional facts are required), or that the examiner does not have the necessary knowledge or training. 3. Schedule the Veteran for a VA audiology examination to assess the etiology of his hearing loss in the left ear. Provide the examiner with access to the Veteran's claims file in conjunction with the examination. All indicated tests must be performed. The examiner should provide an opinion, based on the record, regarding: whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's left ear hearing loss began in service, was caused by service, or is otherwise related to service. The examiner must consider and evaluate the impact of the Veteran's military occupation in service. Further, the examiner must address whether the audiology examinations conducted during service demonstrate deteriorating threshold shifts. A complete and fully explanatory rationale must be provided for any and all opinions expressed. If the examiner finds that the requested opinion cannot be rendered without resorting to speculation, he or she should so state, and should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record (i.e., additional facts are required), or that the examiner does not have the necessary knowledge or training. 3. Then, the AOJ should readjudicate the claim on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case, allow the appropriate time for a response, and then return the case to the Board for further appellate action. 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. §§ 5109B, 7112 (2012). _________________________________________________ ROBERT C. SCHARNBERGER 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).