Citation Nr: 1808186 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-27 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral sensorineural hearing loss. 2. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected lumbar spine disability. REPRESENTATION Appellant represented by: Dale K. Graham, Agent WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to January 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran presented testimony at a "Travel Board" hearing held at his local RO before the undersigned Veterans Law Judge (VLJ) in May 2016. A transcript of the hearing is of record. In August 2016, the Board remanded the case for further development. The claims file has since been returned to the Board for appellate review. The issue of entitlement to service connection for major depressive disorder secondary to bilateral hearing loss and tinnitus has been raised by the record in a December 2017 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Further development is found needed prior to adjudication of this case. As an initial matter, the most recent VA treatment record in the claims file dates from May 2016. In a November 2016 letter, the Veteran indicated that he had undergone additional audiological testing at the VA Medical Center in Fayetteville, Arkansas in October 2016, after his C&P audiological examination and had another audiological test scheduled for December 2016. Because of testing difficulties, the question of whether the Veteran has sensorineural hearing loss to an extent considered disabling under 38 C.F.R. § 3.385 still remains. An October 2013 VA audiology note indicates that the Veteran underwent a comprehensive test and hearing aid examination and was found to have bilateral hearing sensitivity which was normal to mild through 2kHz sloping to moderate sensorineural hearing loss at 3kHz-6kHz. Precise pure tone threshold measurements are not of record and may be documented in a database to which the Board does not have access. Word recognition testing was performed, but not using the Maryland CNC word list. On remand, all outstanding VA treatment records should be associated with the claims file, and the AOJ should take action to ensure that the specific audiometric findings including but not limited to those from October 2013 and December 2016 are added to the Veteran's electronic claims file maintained under the Veterans Benefits Management System (VBMS). Pursuant to the Board's August 2016 remand instructions, the Veteran was provided with an additional VA examination pertaining to his neck claim in September 2016. The examiner stated an opinion that it was less likely than not that the Veteran's cervical spine fusion with residual scar and prior degenerative disc disease of the cervical spine were the result of an event or condition that occurred or arose during military service. While providing an in-depth explanation as to her rationale, she emphasized multiple times that review of the electronic treatment records from 2000 to December 2010 included "NO MENTION of any NECK OR BACK PAIN until 09/13/2012." However, this is contradicted by a VA treatment note identified earlier in the examination report from December 2000 documenting the Veteran's report of pain in the posterior neck. Additionally, a VA health and physical note from December 1999 also documented the Veteran's report of pain in the posterior neck and included an impression of "chronic myofascial neck pain." A July 1999 X-ray of the spine further demonstrated slight narrowing of the C6, C7 intervertebral space. On remand, a clarifying addendum opinion should be sought from the August 2016 examiner demonstrating consideration of these earlier neck symptoms and findings. Accordingly, the case is REMANDED for the following action: 1. Obtain any and all of the Veteran's outstanding VA treatment records, to include those from May 2016 to present. Ensure that audiometric testing results, including pure tone threshold findings, from VA audiograms conducted in October 2013 and December 2016 are associated with the Veteran's claims file in VBMS. All efforts to obtain such records must be fully documented and VA facilities must provide a negative response if no records are found. 2. After completing the above and associating any responsive records with the claims file, refer the Veteran's VA claims file to the VA physician who conducted the September 2016 VA examination, or if unavailable, to another appropriate medical professional, for an addendum medical opinion pertaining to the Veteran's claimed cervical spine disability. The examiner must be given full access to the Veteran's complete VA claims file and the Veteran's electronic records for review, and must specifically note on the report whether the Veteran's VA claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with this examination. If, after review of the file, it is determined that another VA examination is necessary, such must be scheduled and the Veteran must be notified. Considering the lay and medical evidence of record, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran's cervical spine disabilities present at any point during the relevant appeal period (October 2012 to present) arose during or are otherwise causally related to the Veteran's military service. The examiner's attention is directed to the following: a December 2000 VA treatment note documenting the Veteran's report of pain in the posterior neck; a December 1999 VA health and physical note documenting the Veteran's report of pain in the posterior neck and including an impression of "chronic myofascial neck pain;" and a July 1999 X-ray of the spine demonstrated slight narrowing of the C6, C7 intervertebral space. Such evidence is highlighted here, as it contradicts statements made in the rationale of the August 2016 VA examination report that there was no mention of neck pain in the Veteran's treatment records prior to 2012. The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed. However, if they cannot respond to an inquiry without resort to speculation, they should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the reviewer (i.e. additional facts are required, or the reviewer does not have the needed knowledge or training). 3. Thereafter, review the requested addendum medical report to ensure responsiveness and compliance with the directives of this remand; implement corrective procedures as needed. 4. Thereafter, conduct any additional development deemed necessary in light of the expanded record, then readjudicate the Veteran's claims for entitlement to service connection for bilateral sensorineural hearing loss and a cervical spine disability. If the benefits sought remain denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to respond before the claims file is returned to the Board for further appellate consideration, if in order. (CONTINUED ON NEXT PAGE) The appellant 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 (2012). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).