Citation Nr: 18141894 Decision Date: 10/12/18 Archive Date: 10/11/18 DOCKET NO. 12-33 465A DATE: October 12, 2018 REMANDED Service connection for a low back disorder is remanded. Service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active service from September 1973 to September 1976. In February 2017, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In June 2017, the Board denied the Veteran’s claims for service connection for a low back disorder and for service connection for bilateral hearing loss. However, pursuant to a Joint Motion for Remand (JMR), the United States Court of Appeals for Veterans Claims (Court) issued an Order dated February 2018 remanding for action consistent with the JMR. The JMR requested the Board provide a McLendon analysis as to why no VA examination was provided for the Veteran’s low back disorder. It also stated the Veteran’s claim for service connection for hearing loss should be remanded for employment hearing examination records to be obtained. In addition to the actions explicitly directed by the JMR, the Board also finds that additional development is necessary regarding VA treatment records about which the Veteran testified in his February 2017 Board hearing. At that time, the Veteran stated he treated for both appealed conditions shortly after separating from service in the late 1970s at a VA Medical Center in Houston, Texas. Although VA attempted to obtain these records in 2010, it received an April 2010 response that no records were located for this Veteran. Because the Veteran has continued to state that such treatment occurred, the Board finds that another attempt to locate the records should be made, to rule out the possibility of the negative response received in April 2010 having been made in error. 1. Service connection for a low back disorder is remanded. The Veteran has not been afforded a VA examination to determine the etiology of his low back disorder. Service connection was denied in the prior Board decision, and the Court remanded this issue for a McLendon analysis to be provided. However, the Board finds the Veteran’s February 2017 Board testimony that he treated for his low back disability right after separating from service provides a possible implication that the Veteran’s back disability could be associated with his claimed in-service back injury. Because the threshold for meeting this McLendon element is very low, and because the Board has already conceded the current disability and in-service elements have been shown (see the June 2017 Board Decision), affording the Veteran the benefit of the doubt, a VA examination is warranted to determine the etiology of his low back disorder. 2. Service connection for bilateral hearing loss is remanded. The Court remanded the Veteran’s claim for service connection for bilateral hearing loss in order for VA to assist the Veteran in obtaining his prior employment physicals and audiological examinations about which he testified to the Board in February 2017. On remand, efforts must be made to obtain the Veteran’s post-service employment records of audiological testing and/or physical examination results, including records specifically from Calumed Lubricant, a previous employer of the Veteran identified at the February 2017 Board hearing. The matters are REMANDED for the following action: 1. Obtain VA treatment records from September 1976, when the Veteran separated from service, through the present, to include treatment records from any VA Medical Centers in and around Houston, Texas in the late 1970s and early 1980s. 2. After records obtained pursuant to the above directive have been associated with the claims file, schedule the Veteran for a low back examination. The examiner should diagnose all low back disabilities that the Veteran has or has had at any time during the appeal period. For each disability diagnosed, the examiner should provide the following opinions: (a.) Is it at least as likely as not (50 percent or greater) that a low back disability either began during or was otherwise caused by the Veteran’s military service? Why or why not? (b.) If a diagnosis of low back arthritis is made, the examiner should also discuss whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that arthritis of the Veteran’s low back was manifested to a compensable degree within one year of separation from active service? Why or why not? 3. Request the Veteran identify all employers that gave him physical examinations with hearing examinations since separating from service. Request that the Veteran submit the appropriate authorizations for release of these medical examination records or that he provide the records to VA for each employer identified. VA should contact the appropriate facilities in order to obtain the identified records. Any records obtained should be added to the claims file. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel