Citation Nr: 1805794 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-22 151 ) 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 a left foot disability. 3. Entitlement to service connection for a back condition. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel INTRODUCTION The Veteran served in the Texas Army National Guard from June 1977 to December 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Houston, Texas Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veteran's Law Judge (VLJ) during a November 2016 videoconference hearing. A transcript is of record. The VLJ left the record open for 30 days to allow the Veteran to submit additional evidence. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.709 (2017). Following the hearing, the Veteran submitted an excerpt from his service treatment records indicating that he received treatment for an injury to his right heel during service. A claim for service connection for a right heel disability has not been filed with, nor initially examined or adjudicated by the RO and, as such, the Board does not have jurisdiction to review the claim. Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). Should the Veteran wish to apply for entitlement to service connection for a right heel disability, he may do by so submitting a completed VA Form 21-526 to his RO. Although the Veteran brought a claim for service connection for a left heel spur, the evidence of record includes the Veteran's testimony describing pain more broadly in his left foot. As such, the Board has recharacterized this claim generally as a claim for service connection for a left foot disability, as reflected on the title page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay, a review of the claims file reveals that a remand is necessary before a decision on the merits of these claims can be reached. The evidence of record shows that the Veteran served in the Texas Army National Guard from June 1977 to December 1977. The Veteran asserts that during his service he sustained noise exposure and injuries to his left foot and his back that have resulted in the disabilities claimed in this appeal. For VA purposes, active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which an individual is disabled from a disease or injury incurred in the line of duty or any period of inactive duty for training (INACDUTRA) where an individual is disabled from an injury incurred in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. §3.6(a). Accordingly, in order for service connection to be granted, there must be evidence that the Veteran currently suffers from a disability resulting from a disease or injury incurred in or aggravated by ACDUTRA or for an injury incurred in INACDUTRA. Unfortunately, the evidence of record is insufficient to confirm the dates of the Veteran's ACDUTRA or INACDUTRA service. A remand is necessary to acquire additional documentation to this effect before a decision can be rendered. In addition, these claims must be remanded to obtain adequate VA examinations. VA's duty to assist includes obtaining a medical examination when an examination is necessary to make a decision on a claim. See 38 U.S.C. § 5103A(d). Furthermore, when VA undertakes to provide an examination, it must ensure that it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Regarding the Veteran's claim for service connection for bilateral hearing loss, the VA examination on file is insufficient to decide the claim. The September 2011 VA examination revealed that the Veteran did not have hearing loss for VA purposes. However, in finding that the Veteran's tinnitus was at least as likely as not related to his noise exposure in service, the examiner explained that loud noise exposure can damage hair cells in the cochlea causing them to die earlier and that this can have a long-term effect on hearing and result in hearing loss and tinnitus. At his November 2016 hearing, the Veteran testified that his hearing has worsened. Based on this and the examiner's September 2011 rationale, it stands to reason that the Veteran may currently suffer from hearing loss and it may be attributable to his noise exposure in service. Furthermore, in September 2011, upon reviewing the examination report, the RO determined that the examiner had not provided a sufficient rationale for her conclusions regarding the Veteran's hearing loss and, on that basis, requested an addendum opinion that was never provided. For both of these reasons, a new examination is necessary to decide the Veteran's claim for service connection for hearing loss. See Barr, 21 Vet. App. 312. With regard to the Veteran's claims for service connection for a left foot disability and a back condition, the Veteran was not afforded VA examinations. VA must provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, and the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is low. McLendon, 20 Vet. App. at 83. Regarding the Veteran's claimed left foot disability, the evidence of record includes service treatment records showing that the Veteran was treated for a right heel fracture during service in August 1977, and the Veteran's lay statements that he injured his left foot in basic training and that the resulting disability adversely compromises his quality of life. Regarding the Veteran's claimed back condition, the evidence shows that the Veteran currently suffers from a lumbar spine disc herniation, and the Veteran testified that he suffered a fall during service and that he has experienced pain in his back ever since. Although some of the Veteran's medical records have been obtained, the medical evidence on file is insufficient to decide the claim. Accordingly, a VA examination for these disabilities is required before the appeal can proceed. Finally, a remand is also necessary to acquire additional documents. VA's duty to assist veterans in substantiating a claim for VA benefits includes a duty to make reasonable efforts to assist a veteran in securing evidence necessary to substantiate his claim. 38 U.S.C. §§5103A; 38 C.F.R. § 3.159(c). The Veteran testified that he sought treatment for his left foot disability and his back condition in the late 1970s, that his primary doctor has records to that effect, and that he told his primary doctor that these conditions were related to service. However, a review of the claims file revealed no post-service treatment records for the Veteran's left foot disability, and the only medical authorization form (Form 21-4142) on file specifically authorized the release of information pertaining only to the Veteran's lower back treatment. It appears no efforts were made to obtain documents relating to the Veteran's left foot disability. In addition, treatment records for the Veteran's back condition only reach back as far as 2009, and those documents indicate that the Veteran suffered a work-related injury to his back in June 2009 that was reported to Texas Workers' Compensation. Further efforts must be made to acquire all outstanding treatment records for both conditions and documents relating to the Veteran's work-related injury before a decision can be made on these claims. Accordingly, the case is REMANDED for the following action: 1. To the extent possible, contact all appropriate sources to request any available personnel records for the Veteran showing his periods of ACDUTRA and INACDUTRA between June 1977 and December 1977. All efforts to obtain this information should be fully documented, and the Veteran should be notified if such verification cannot be accomplished. 2. Contact the Veteran and obtain the provider name, address, and approximate date of treatment for any additional treatment records that he would like VA to obtain regarding his claimed hearing loss, left foot disability and back condition. Obtain all records adequately identified by the Veteran, and for which the Veteran has signed the appropriate releases, and associate them with the claims file. If any identified records are not obtainable (or none exist), the Veteran should be notified and attempts to acquire those records should be documented in the claims file. 3. Obtain, with any necessary authorization from the Veteran, any documentation related to his June 2009 back injury from Texas Workers' Compensation and his then-employer, Weslaco Fire Department. The Veteran may also submit these documents himself. If any of these documents cannot be acquired, this should be documented in the claims file. 4. After the above development has been completed, schedule the Veteran for a new VA examination for his hearing loss claim. The examiner is asked to provide an opinion as to whether the Veteran currently suffers from hearing loss and whether it is at least as likely as not (50 percent or greater probability) that any hearing loss had its onset in-service or is otherwise related to service. The claims file, including a copy of this Remand, must be made available to and reviewed by the examiner and such review must be noted in the opinion. The examiner is specifically directed to consider the rationale provided in the September 2011 examination report stating that noise exposure in service can have a long-term effect on hearing and cause hearing loss. 5. After the development in #2 is completed, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's current left foot disability or disabilities. The claims file, including a copy of this Remand, must be made available to and reviewed by the examiner and such review must be noted in the opinion. After a thorough review of all evidence in the claims file, the examiner should provide the following opinions: (a) Identify the Veteran's current left foot disability or disabilities. (b) Explain whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran's current left foot disabilities had their onset in-service or are otherwise related to service. In doing so, the examiner must comment on the Veteran's lay statements about the foot injury that he sustained in service and his assertion that it continues to affect his quality of life. The examiner is advised that the Veteran is competent to report observable symptomatology, and that the lay statements should be presumed to be credible for the purposes of this examination only. 6. After the development in #2 and #3 is completed, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's current back condition or conditions. The claims file, including a copy of this Remand, must be made available to and reviewed by the examiner and such review must be noted in the opinion. After a thorough review of all evidence in the claims file, the examiner should provide the following opinions: (a) Identify the Veteran's current back condition or conditions. (b) Explain whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran's current back conditions had their onset in-service or are otherwise related to service. In doing so, the examiner must comment on the Veteran's lay statements about his back injury that he sustained in service and his reports of experiencing pain ever since. The examiner is advised that the Veteran is competent to report observable symptomatology, and that the lay statements should be presumed to be credible for the purposes of this examination only. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this Remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the claim that has been remanded. If any benefit sought in connection with the remanded claim is denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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. §§ 5109B, 7112. _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).