Citation Nr: 18144434 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 14-41 968 DATE: October 24, 2018 REMANDED 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for lumbar spine with degenerative changes at L5/S1 is remanded. REASONS FOR REMAND The Veteran served honorably in the U.S. Navy from July 1990 to March 1994 with peacetime service between July 1990 to August 1990 and Gulf War Service from August 1990 to March 1994. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in June 2018. A transcript of this proceeding has been associated with the claims file. At the hearing, the Veteran’s representative requested that the record be held open for 90 days after the hearing in order to submit additional medical records. The Board has not received any additional records from the Veteran or his representative as of the date of this decision. 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; 38 C.F.R. § 3.159. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to decide on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c) (4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For the below noted reasons, the Board finds that, while the Veteran underwent a VA examination in January 2014 regarding his claim for service connection for bilateral hearing loss and in October 2013 regarding his claim for service connection for lumbar spine with degenerative changes, an addendum to the previous exam and/or an additional VA examination is necessary. 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss has worsened since his last VA examination. He testified that he now has hearing aids and still has difficulty hearing even with his hearing aids. The Veteran was afforded a VA audiological examination in January 2014. This examination report shows some sensorineural hearing loss in the right ear at 3000 and 4000 Hz and some sensorineural hearing loss in the left ear at 6000 and 8000 Hz (see Hensley v. Brown, 5 Vet. App. 155, 157 (1993) holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). However, the January 2014 VA examination report also shows that the Veteran does not have hearing loss to a degree considered disabling under 38 C.F.R. § 3.385. Also, the January 2014 VA examiner opined that it was less likely than not that any current hearing loss is related to the Veteran’s military service. Specifically, the examiner noted that the Veteran’s hearing was normal during his separation evaluation. Although the VA examiner did not find the Veteran’s bilateral hearing loss disabling, acoustic trauma was conceded based on his Military Occupational Specialty as a machinery repairman. The examiner noted that the Veteran’s position would have exposed him to noise levels adequate enough to produce acoustic trauma and cause changes to the auditory system. During the June 2018 Travel Board hearing, the Veteran testified that his hearing loss had increased in severity since his last VA examination. The Veteran testified that he received hearing aids about one to two years ago. He testified that he has to turn the hearing aids up to full volume in order to hear and he believes that his hearing has gotten worse since his last exam. Given the possibility that the Veteran may now have hearing loss to a degree considered disabling under 38 C.F.R. § 3.385, he should be afforded another VA examination on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for lumbar spine with degenerative changes at L5/S1 The Veteran contends he hurt his back while carrying heavy equipment serving on the USS Proteus in 1992 and ever since then he has experienced worsening low back pain. The Veteran was afforded a VA examination on October 2013. He was diagnosed with lumbar spine with degenerative changes at L5/S1. Additionally, diagnostic imaging tests documented arthritis with a slight narrowing of the L4/5 disc space. The examiner opined that the Veteran’s low back pain is less likely than not caused by or a result of a lower back condition that occurred in service. The rationale for the opinion given was that the Veteran’s separation physical exam did not reveal any spine issues and there are no private records to review to confirm that the Veteran’s back pain has been ongoing and constant since the time of discharge. From review of the exam, it appears that the examiner failed to consider a February 1992 complaint of low back pain in the Veteran’s service treatment records or his contention that he injured his back while carrying heavy loads down ladders aboard the USS Proteus. According to the Veteran’s service treatment records, on February 1992, the Veteran received care aboard the USS Proteus for sharp pain to the middle back. The treating physician diagnosed the Veteran with a mid-back muscle strain and he was given medication and advised to avoid heavy lifting or straining. Additionally, the Veteran asserted that he injured his back carrying heavy equipment down ladders aboard the USS Proteus and he repeated the same contention on January 2012 during a routine physical with the VA and on October 2014 on the Form 9. The Veteran’s treatment records also show complaints and treatment of back pain on February 2012, November 2013, and June 2014. The Board notes that the VA examiner failed to consider the Veteran’s February 1992 service treatment records or his consistent statements on how he injured his back. Therefore, on remand, an opinion which takes all the Veteran’s allegations as well as all the evidence of record into account, should be obtained. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matter is REMANDED for the following actions: 1. Obtain updated treatment records. 2. After obtaining updated treatment records, schedule the Veteran for an audiology examination to determine whether the Veteran has hearing loss to a degree considered disabling under 38 C.F.R. § 3.385. The claims file, to include a copy of this Remand, must be made available for review of the Veteran’s pertinent medical and other history. The examination report must state whether this review was accomplished. If the Veteran has hearing loss to a degree considered disabling under 38 C.F.R. § 3.385, the examiner should opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT OR BETTER PROBABILITY) that the Veteran’s hearing loss is related to the Veteran’s active duty service, to include his conceded in-service acoustic trauma. It is noteworthy that the Veteran now has hearing aids. 3. Obtain an addendum opinion or schedule the Veteran for an examination, based upon the recommendation, from an appropriate clinician to determine the nature and etiology of his claimed lumbar spine with degenerative changes condition. The claims file, to include a copy of this Remand, must be made available for review of the Veteran’s pertinent medical and other history. The examination report must state whether this review was accomplished. The examiner should opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT OR BETTER PROBABILITY) that the Veteran’s claimed back condition is related to the Veteran’s active duty service. In offering any opinion, the examiner should consider the service treatment records including the showing that the Veteran complained of middle back pain on February 1992, the Veteran’s statements about injuring his back carrying heavy equipment, and the treatment records detailing treatment for back pain in February 2012, November 2013, and June 2014. Any opinion expressed should be accompanied by a complete rationale. 4. Readjudicate the claim. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Hartford, Associate Counsel