Citation Nr: 18150961 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 17-43 511 DATE: November 19, 2018 REMANDED Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for bilateral lower extremity sciatica is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1982 to November 1987. 1. Entitlement to service connection for a left AND right hip disability is remanded. The Veteran contends that his bilateral hip disability is related to service. To date, a VA examination has not been conducted. As the Veteran’s private medical records show findings of degenerative joint disease with total hip arthroplasty which may be related to service, to include falling from a roof, the Board finds that the low threshold standard for when the Board should order a VA examination to secure a medical opinion is met. McLendon v. Nicholson, 20 Vet. App. 27 (2006). 2. Entitlement to service connection for a back disability is remanded. The Veteran expressed that he has had ongoing pain and discomfort since his back injury in service. See September 2016 Notice of Disagreement. The Board finds that the June 2016 examiner’s opinion inadequate because it is based on the absence of post-service treatment and does not consider the Veteran’s lay statements regarding continuity of symptomatology. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To be adequate, an examination must take into account an accurate history. Nieves-Rodriguez v. Nicholson, 22 Vet. App. 295 (2008). As the examiner did not consider the Veteran’s report of pain since his multiple back injuries in service, the examiner’s negative opinion is inadequate for rating purposes. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Veteran is competent to report the circumstances surrounding his back injury, and the onset and nature of his back symptoms. As such, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran’s current back disability is necessary. See 38 C.F.R. § 4.2. In rendering the new opinion, the examiner should consider the Veteran’s statements regarding the occurrence of his back disability, in addition to his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). 3. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss is a result of his military service. The Veteran expressed that he worked in the flight line and proper hearing protection was not used nor recommended. See September 2016 Notice of Disagreement. The Veteran indicated that he has had no jobs after service that have exposed him to the kinds of noise that he was exposed too in service. Id. The Board finds that the June 2016 examiner’s negative opinion is inadequate because it is based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value). The examiner expressed that the Veteran had hearing within normal ranges on his enlistment, baseline, and reference exams and that there was no worsening of hearing during his military service. However, the Veteran’s service treatment records show that the auditory threshold in the right ear and left ear shifted in service, suggesting signs of worsening. Such shift has not been addressed by an examiner. The scores for the Veteran’s enlistment audiological evaluation in October 1981 reveal puretone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hz were 5, 5, 0, 0, and 0 dB respectively. The scores for the Veteran’s enlistment audiological evaluation in October 1981 reveal puretone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hz were 10, 5, 5, 0, and 0 dB respectively. The scores for the Veteran’s audiological evaluation in July 1986 reveal puretone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hz were 15, 15, 10, 15, and 10 dB respectively. The scores for the Veteran’s audiological evaluation in July 1986 reveal puretone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hz were 25, 20, 15, 15, and 10 dB respectively. In addition, the Board notes that the absence of documented hearing loss while in service is not fatal to the claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993). Lastly, the Veteran submitted a private opinion that expressed that the Veteran’s bilateral hearing loss is accentuated by serious tinnitus in both ears. As such, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran’s hearing loss is necessary. See 38 C.F.R. § 4.2. This VA examiner’s opinion should include whether the Veteran’s hearing loss is related to his active duty service, to include in-service noise exposure, and whether the Veteran’s hearing loss is caused or aggravated by his service-connected tinnitus. 4. Entitlement to service connection for bilateral lower extremity sciatica is remanded. With regard to the Veteran’s bilateral sciatica, the Veteran expressed that he continues to suffer from numbness in his lower extremities. See September 2016 Notice of Disagreement. Post-service treatment records show a diagnosis of bilateral radiculopathy. The requirement of a “current disability” is satisfied if a disorder is diagnosed at any time during the pendency of the appeal; even though the disability may resolve prior to adjudication of the claim. Based on the theory of secondary service connection, the Board finds that the Veteran’s claim of service connection for bilateral sciatica as secondary to a back disability and or hip disability is inextricably intertwined with the remanded claim for service connection for such back and hip disability. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Accordingly, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s bilateral hip disability. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current left and/or right hip disability that is causally or etiologically related to his military service, to include any injury or symptomatology therein. In providing the above, the examiner is requested to review all pertinent records associated with the claims file. The examiner should also note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner(s) should provide a fully reasoned explanation. A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s back disability. The examiner should opine as to whether it is at least as likely as not that the Veteran’s back disability is causally or etiologically related to his military service, to include any injury or symptomatology therein. In rendering the opinion, the examiner should consider the Veteran’s statements regarding the occurrence of his back disability, in addition to his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007). In providing the above, the examiner is requested to review all pertinent records associated with the claims file. The examiner should also note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner(s) should provide a fully reasoned explanation. A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s hearing loss. The examiner should identify any current hearing loss in the right and left ear. Any indicated tests and studies should be performed. For each ear in which hearing loss is identified, the examiner is then specifically instructed to provide the following opinion: Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s hearing loss is related to his time in the service, specifically to include military noise exposure in service? In providing this opinion, the examiner is requested to address the threshold shift as noted above, reflecting a worsening from 1981 to 1986 audiometric testing. Whether it at least as likely as not that the Veteran’s hearing loss was caused by his service connected tinnitus? Whether it is at least as likely as not that the Veteran’s hearing loss was chronically worsened (aggravated beyond its natural progression) by his service connected tinnitus? The examiner is advised that the absence of documented hearing loss while in service is not fatal to the claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In providing the above, the examiner is requested to review all pertinent records associated with the claims file. The examiner should also note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner(s) should provide a fully reasoned explanation. A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of any bilateral lower extremity sciatica. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current bilateral lower extremity sciatica that is causally or etiologically related to his military service, to include any injury or symptomatology therein. The examiner should opine as to whether it at least as likely as not that the Veteran’s bilateral lower extremity sciatica was caused by his back and/or hip disability? The examiner should opine as to whether it is at least as likely as not that the Veteran’s bilateral lower extremity sciatica was chronically worsened (aggravated beyond its natural progression) by his back and/or hip disability? The examiner is advised that the requirement of a “current disability” is satisfied if a disorder is diagnosed at any time during the pendency of the appeal; even though the disability may resolve prior to adjudication of the claim. In providing the above, the examiner is requested to review all pertinent records associated with the claims file. The examiner should also note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner(s) should provide a fully reasoned explanation. A clear rationale for all opinions is requested and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.D., Associate Counsel