Citation Nr: 1805774 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-18 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel INTRODUCTION The Veteran had active service from October 1967 to September 1970. He served in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals (Board) on appeal from an May 2011 and a September 2011 rating decision of the St. Petersburg, Florida Regional Office (RO). In June 2017, the Veteran participated in a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. The claims for service connection for a low back disability and bilateral hearing loss are remanded to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. A June 1983 rating decision denied service connection for a low back disability. The Veteran was informed in writing of the adverse decision and his appellate rights in July 1983. The Veteran did not submit a timely notice of disagreement with that decision. 2. Evidence added to the claims file since the final June 1983 rating decision which denied service connection for a low back disability is new and material. CONCLUSIONS OF LAW 1. The June 1983 rating decision that denied service connection for a low back disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received sufficient to reopen the claim for service connection for a low back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2016); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim, and is not merely cumulative of other evidence that was then of record. 38 C.F.R. § 3.156(a) (2017). That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). A June 1983 rating decision denied service connection for a low back disability. At that time, the service medical records noted complaints of neck pain and reports of a back injury by the Veteran. In June 1970, the Veteran was diagnosed with back strain. In Ju1y 1970, the Veteran complained again of back pain, but X-rays were negative. In August 1970, the Veteran reported lower back pain for the previous six to eight months, but an X-ray was normal. The claim for service connection was denied because while there was evidence of treatment in service, a low back disability was not found at the time of most recent examination. Following that denial the Veteran did not initiate an appeal, and the decision became final. 38 U.S.C. § 7105(b) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). The Veteran initiated a request to reopen this claim in March 2010. Evidence added to the claims file since the final June 1983 rating decision includes medical records showing the Veteran's complaints of and treatment for low back pain. A June 2012 VA X-ray report notes diffuse moderate degenerative joint disease of the lumbar spine with laminectomy at L4. The Veteran also submitted several lay statements from friends and relatives describing a continuity of low back symptomatology following service. The claim was previously denied due to the lack of a back disability. The new evidence shows the presence of a current back disability. Therefore, the new evidence is material and the claim for service connection for a low back disability must be reopened. ORDER New and material evidence having been submitted, the claim for service connection for a low back disability is reopened and to that extent only the claim is allowed. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. A remand by the Board confers on the Veteran the right to compliance with the remand. Stegall v. West, 11 Vet. App. 2689 (1998). The Veteran contends that he is entitled to service connection for a low back disability as the claimed disability is the result of an in service injury and has been productive of ongoing pain since its occurrence. In a July 2010 VA examination, the examiner opined that the Veteran's low back disability was not related to service or an in service incident. The rationale provided was that the Veteran was seen in service for an acute lumbar strain. X-rays were negative, and the examiner noted that there was no evidence that the Veteran had been seen or treated for a chronic lumbar condition since separation from service in 1970. In a May 2011 private treatment record, Dr. F.L., M.D. opined that the Veteran's low back disability was related service. Dr. F.L., M.D. noted that he had been treating the Veteran since August 2006, and that by history the claimed disability dated back to the injury that occurred while in service. In an August 2011 VA examination, the examiner opined that the Veteran's low back disability was not related to service. The rationale provided was that the Veteran was seen in service for an acute lumbar strain. X-rays were negative, and the examiner noted that there was no evidence that the Veteran had been seen or treated for a chronic lumbar condition since separation from service in 1970. The Board observes that this examination was provided by the same examiner form the July 2010 examination, and the same rationale was provided verbatim. When VA obtains an examination or opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The August 2011 VA examiner provided the same rationale that was provided in the July 2010 VA examination. By doing so, there is no indication that the Veteran took into account the May 2011 private treatment record submitted by the Veteran showing treatment following service for a low back disability. For VA purposes, the examination from August 2011 is insufficient. In the May 2011 private treatment record, although the physician has provided a positive opinion regarding the etiology of the Veteran's low back disability, there is no indication that the physician has had an opportunity to review the claims file or complete evidentiary record prior to issuing a decision, including the negative X-rays at the Veteran's separation from service. That opinion was based on a history provided by the Veteran. As a result, a new examination is needed to take into consideration the Veteran's entire medical history, current treatment records, and statements regarding the alleged in-service incidents. The Board also notes that a November 2017 primary care message indicates that a VA physician is working on a nexus opinion for the Veteran after receiving medical records from the Veteran. To date, there are no new records in the file indicating that opinion has been completed. Therefore, remand is necessary to obtain any such opinion. Two VA examinations found that the Veteran did not meet the criteria for any bilateral hearing loss to be considered a disability. 38 C.F.R. § 3.385 (2017). However, a September 2011 private audiometry report possible shows that the criteria for a hearing loss disability are met for one ear. The Board is unable to properly interpret the markings on that report. In addition, that report suggests worsening of the hearing loss since the VA examinations. Therefore, the Board finds that a more current VA examination is needed to determine whether the Veteran currently has a hearing loss disability. Clinical documentation dated after November 2017 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Associate with the record any VA medical records not already of record of treatment of the Veteran, including records dated from November 2017 to present. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any low back disability with a medical doctor examiner who has not previously examined him. The examiner should review the claims file and note that review in the report. All indicated tests should be conducted. The examiner should provide a rationale for all opinions given. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any low back disability is related to active service or any incident of service, to particularly include the complaints of pain during service as shown in the service medical records. If the examiner determines that the Veteran's lower back disability is not the result of active service, but can be attributed to some other cause, the examiner should so state, taking into account the Veteran's full post-service work and medical history. The examiner should discuss the Veteran's lay statements and the other lay statements submitted regarding any in service incident, history, and continuity of symptomatology. The examiner should address the May 2011 private treatment record submitted by Dr. F.L., M.D. 3. Then, schedule the Veteran for a VA audiology examination. The examiner should provide audiometry readings and should state whether a diagnosis of hearing loss is appropriate for either ear, and if so, what type of hearing loss is shown. The examiner should provide speech recognition scores using the Maryland CNC test. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any hearing loss disability is related to service or noise exposure during service. The examiner should provide a rationale for that opinion. The examiner should note that the Veteran has already established service connection for tinnitus. The examiner should reconcile the opinion with the September 2011 private ENT doctor's opinion that the Veteran's hearing loss is due to noise induced trauma while in service. 4. Then, readjudicate the claims on appeal. If any decision is adverse to the appellant, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs