Citation Nr: 18159871 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-60 095 DATE: December 20, 2018 REMANDED Entitlement to service connection for gout. Entitlement to service connection for a left shoulder disability. Entitlement to service connection for a right shoulder disability. Entitlement to service connection for a low back disability. Entitlement to service connection for a left hip disability, to include as secondary to a low back disability. Entitlement to service connection for a left knee disability, to include as secondary to a low back disability. Entitlement to service connection for a right knee disability, to include as secondary to a low back disability. Entitlement to service connection for a left foot disability, to include as secondary to a low back disability. Entitlement to service connection for a right foot disability, to include as secondary to a low back disability. Entitlement to service connection for bilateral hearing loss. Entitlement to service connection for sleep apnea. Entitlement to service connection for hypertension. REFERRED The issue of entitlement to compensation for a left hip disability pursuant to 38 U.S.C. § 1151 was raised by the Veteran in his March 2015 notice of disagreement. The record reflects that the Regional Office (RO) has taken steps to develop this claim, but a rating decision has not been issued. Therefore, the Board refers the claim to the RO for adjudication. REASONS FOR REMAND The Veteran served on active duty from July 1980 to November 1983. The Veteran seeks entitlement to service connection for gout, a left shoulder disability, a right shoulder disability, a low back disability, a left hip disability, a left knee disability, a right knee disability, a left foot disability, a right foot disability, bilateral hearing loss, sleep apnea, and hypertension. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. With respect to all claims, the Veteran was provided with a Statement of the Case (SOC) in October 2016, over two years ago. However, since that time, a voluminous number of documents have been added to the record. These documents include VA treatment records dated as recently as May 2017, VA examinations reports, private treatment records, Disability Benefits Questionnaires submitted by private physicians, and lay statements in support of the Veteran’s various claims. Significantly, the VA treatment records show ongoing treatment for obstructive sleep apnea, degenerative joint disease, arthralgia, multiple joint pain, low back pain, bilateral sensorineural hearing loss, rheumatoid arthritis, and benign essential hypertension. This new and relevant evidence was not reviewed by the Agency of Original Jurisdiction (AOJ). Although initial AOJ review is automatically waived for evidence submitted by the Veteran or his representative when the VA Form 9 is received after February 2, 2013, the automatic waiver does not apply to VA-generated evidence, such as VA examination reports or VA treatment records not submitted by the Veteran. 38 U.S.C. § 7105(e) (2012). Waiver of an SOC is only applicable to evidence submitted by the Veteran or his representative. See 38 C.F.R. § 20.1304. As such, the appeal must be remanded for AOJ review of the newly received evidence. Additionally, with respect to the claim of entitlement to service connection for bilateral hearing loss, the Veteran was last provided with a VA Hearing Loss and Tinnitus Examination in January 2015, approximately three years ago. At that time, the VA audiologist found that the Veteran did not exhibit a hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. However, the same VA audiologist found that the Veteran’s tinnitus was due to in-service noise exposure as evidenced by documentation of the Veteran as a heavy anti-armor weapons crewman, rifle M-16 expert, and hand grenade sharpshooter, with an Expert Infantryman Badge. Since that time, the record suggests that the Veteran’s hearing acuity has worsened, as evidenced by VA treatment records dated as recently as 2017 documenting bilateral sensorineural hearing loss as an active problem, as well as a March 2017 private treatment record in which the Veteran sought treatment for bilateral hearing loss and right ear otalgia. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including providing a medical examination when it is necessary to decide a claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c)(4) (2018). Given this recent evidence of a bilateral hearing loss disability, coupled with the Veteran’s conceded in-service acoustic trauma, the Board finds that he should be provided with another VA Hearing Loss and Tinnitus Examination to determine whether he has a hearing loss disability for VA purposes, and, if so, whether the disability is related to his in-service acoustic trauma. With respect to the claim of entitlement to service connection for a low back disability, the Veteran was provided with a VA Back (Thoracolumbar Spine) Conditions Examination in September 2016, at which time he was diagnosed as having lumbosacral strain, degenerative arthritis of the spine, and Grade I retrolisthesis. However, the VA examiner concluded that these disabilities were less likely than not incurred in or caused by an in-service injury, event, or illness. Although the VA examiner acknowledged that the Veteran was treated for lumbar strain in October 1982 while in service, she emphasized that the in-service condition was only acute, that there was no evidence of chronicity of care (i.e., that there was “no documentation provided to support ongoing condition related to the initial lumbar strain”), and that a nexus had not been established. The Veteran has argued that this September 2016 VA Back (Thoracolumbar Spine) Conditions Examination is inadequate. Specifically, in a January 2017 statement, the Veteran indicated that he informed the September 2016 VA examiner that he had self-medicated with over-the-counter pain relievers for his continuing symptoms of pain and limited motion in his back since his initial in-service injury in late October 1982, and that he believed the VA examiner purposely omitted this information from the examination report. The Board agrees that further discussion and consideration of the Veteran's lay assertions of record is necessary in the formulation of an opinion. Indeed, although the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran is competent to provide testimony concerning factual matters of which she had firsthand knowledge, such as symptoms of a current disability. See Washington v. Nicholson, 19 Vet. App. 362 (2005). As such, the Board finds that an additional VA medical opinion regarding the likely etiologies of the Veteran’s diagnosed low back disabilities are required. See 38 C.F.R. § 4.2 (2017) (where an examination report does not contain sufficient detail, it is inadequate for evaluation purposes); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Finally, the February 2015 rating decision references electronic review of VA treatment notes dated from June 1997 through February 2015 from the Muskogee, Oklahoma City, Boise, Denver, Little Rock, and Puget Sound VA Medical Centers. With the exception of several treatment notes dated in January 2010, there are no VA treatment notes dated prior to July 2014 of record. Moreover, the most recent VA treatment records associated with the claims file are dated in May 2017 and indicate that the Veteran was scheduled for future appointments in July 2017. As such, there are outstanding VA treatment records that should be associated with the claims file before further adjudication of the appeal. 38 U.S.C. §5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency). The matters are REMANDED for the following action: 1. Associated all VA treatment records for the Veteran from the Muskogee, Oklahoma City, Boise, Denver, Little Rock, and Puget Sound VA Medical Centers dated from June 1997 to the present, to include any associated outpatient clinics with the claims file. Document all requests for information as well as all responses in the claims file. 2. Provide the Veteran with an appropriate examination to determine the current severity and likely etiology of any diagnosed bilateral hearing loss disability. After reviewing the claims file, the examiner is asked to opine as to whether the Veteran exhibits a current bilateral hearing loss disability based on the applicable VA criteria. If the Veteran does have a current bilateral hearing loss disability, then the examiner is asked to opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current hearing loss disability began in service, was caused by service, or is otherwise related to service. The examiner is asked to include a rationale for all opinions offered, with citation to supporting factual data, as indicated. 3. Schedule the Veteran for an appropriate VA examination to determine the likely etiology of his diagnosed lumbar spine disabilities. The entire claims file must be provided to the examiner for review in conjunction with the examination. Any clinically indicated testing and/or consultations must be performed. The examiner is asked to opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's lumbar spine disabilities had their onset in service or are otherwise related to service. The examiner must review the claims file and discuss all symptomatology associated with the Veteran's lumbar spine condition. The examiner must consider and discuss the Veteran's lay assertions of record, including that he experienced recurrent low back pain since his initial in-service treatment for lumbar strain in October 1982. In rendering the opinion, the examiner must note that VA has already conceded that the Veteran has demonstrated a low back disability since the claim was filed, as well as an injury in service. 4. Following any additional development deemed appropriate, readjudicate the issues on appeal. In doing so, consider all relevant evidence added to the claims file since the October 2016 SOC, to include all VA treatment records, private treatment records, VA examinations, Disability Benefits Questionnaires, and lay statements relevant to the Veteran’s claims. If any benefit sought is not granted, the Veteran and his representative should be furnished with a Supplemental SOC, and they should be afforded an opportunity to respond before the record is returned to the Board for further review. K. M. SCHAEFER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel