Citation Nr: 20021647 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-05 072 DATE: March 26, 2020 REMANDED Service connection for bilateral hearing loss is remanded. Prior to August 30, 2019, a disability rating in excess of 20 percent for lumbosacral spine disability, and 40 percent, thereafter, is remanded. A disability rating in excess of 20 percent for radiculopathy of the right lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1996 to November 1999. The Department of Veterans Affairs (VA) is grateful for his service. In January 2019, the Board remanded the claims and they now return for appellate consideration. The Board also remanded a claim for service connection for left lower extremity radiculopathy. During the pendency of the appeal, in a November 2019 rating decision, the agency of original jurisdiction (AOJ) granted service connection for left lower extremity radiculopathy, which constitutes a complete grant of that benefit sought. The Veteran has not disagreed with disability rating or effective date. Hence, there is no longer a case in controversy for appellate consideration as to that issue. 1. Service connection for bilateral hearing loss is remanded. Pursuant to the Board’s January 2019 remand instructions, the Veteran was afforded a hearing loss examination in September 2019 addressing his claimed bilateral hearing loss. In its remand, the Board instructed the examiner to address discrepancies between a VA ears disability examination in July 2013, which provided a favorable etiology opinion linking hearing loss to service, and a VA hearing loss examination in July 2013 which provided an unfavorable etiology opinion finding no link between current hearing loss and service. Regrettably, the examiner failed to address both past examinations. This requires remand for substantial compliance with the prior remand instructions. Stegall v. West, 11 Vet. App. 268 (1998)). Additionally, the VA examiner in September 2019 provided as a basis for finding no link between current hearing loss and service a finding that previous VA benefits decisions had not found such a link. VA adjudicative decisions are not medical facts and hence are not valid bases of medical opinion. A medical opinion is inadequate if it relies on an inaccurate factual basis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Hence, a new hearing loss examination is warranted to address the claim. 2-3. The claims for increased ratings for lumbosacral spine disability and radiculopathy in the right lower extremity is remanded. In January 2019, the Board remanded the claims for higher ratings for lumbosacral spine disability and right lower extremity radiculopathy, requesting a new examination to address the nature and severity of these disabilities. The Board then noted the following: At a July 2017 VA treatment the Veteran received a steroid epidural injection in the lower back due to pain which the Veteran reported likely resulted from his recently overdoing some things when performing yard work. The Veteran added that this was a different pain than he had had in a long time and that it was worse pain. In contrast, in his testimony before the undersigned in September 2017, the Veteran reported worsening lower back and right leg pain necessitating steroidal injections, but failed to mention any injury or difficulty associated with recent physical activity. Rather, the Veteran’s testimony suggested incapacity to perform significant activity, including impairment in walking or prolonged standing. Because of these noted discrepancies between testimony and recent documented events, activities, and impairment, the Veteran’s veracity and reliability as a historian of his claimed disabilities was called into question. Accordingly, the Board, in its remand instructions, required that the VA examiner perform validity testing to assist in ascertaining the nature of current disability. Regrettably, while a VA examiner performed an examination in October 2019 addressing the lumbosacral spine and right lower extremity radiculopathy, there is no indication that validity testing was performed. Remand is required for substantial compliance with the Board’s prior remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims, including from VA facilities, to include from the VA Medical Center in Columbia, South Carolina, and the Orangeburg VA outpatient clinic. All actions to obtain the requested records should be documented in the claims file. 2. Arrange for the Veteran to undergo a new VA hearing loss examination to address the current nature and etiology of any hearing loss disability. The examiner must be advised that a September 2019 examination was deficient because it failed to address these conflicting ears disability and hearing loss examinations in July 2013 and because it improperly relied on prior VA benefits adjudications as a basis for its medical opinion. The Veteran’s records of past treatments and examinations in service and following service should be carefully reviewed. The Veteran’s documented history upon service entry in February 1996 of tubes in his ears since 1976 should also be noted. The examiner should note the physical conditions of the ears identified upon ear disability examination in July 2013, as well as those reflected in service records. The examiner should then provide an opinion whether it is at least as likely as not (50 percent probability or higher) that there was an increase in disability of the ears during service from that noted upon service entrance in February 1996, and if so the examiner must state the nature and extent of this increased disability and whether this resulted in hearing impairment. The examiner should then opine, separately for each ear, whether it is at least as likely as not (50 percent probability or higher) that the Veteran has hearing loss which developed in service or was causally related to service including related to any noise exposure in service, or which was permanently increased in severity during service. In so doing, the examiner should also address the affirmative etiology opinion provided by the July 2013 ear disability examiner and the negative etiology opinion provided by the July 2013 hearing loss examiner. The examiner should state whether either of these opinions are supported by the balance of the evidentiary record. The examiner should explain his or her findings and conclusions. 3. Thereafter, arrange for the Veteran to undergo a new in-person VA examination by a qualified spine examiner, to address the nature and extent of service-connected lumbosacral spine disability and any associated radiculopathy into the right and left lower extremities. Past records of treatment and examinations should be carefully reviewed. The examiner must be advised that a prior examination in October 2019 was inadequate because the examiner failed to conduct validity testing, which is necessary based on significant discrepancies between the Veteran’s testimony at a Board hearing conducted in August 2017 and recent prior events, injury, and complaints as documented in treatment records. (He omitted a relevant recent history of back injury performing physical activities when he testified to physical incapacities and recent treatments due to worsening symptoms.) If subjective symptoms or demonstrations at the examination are judged to be invalid based on validity testing, the examiner should endeavor to make findings based on the most objective available findings. The examiner should conduct a thorough evaluation with validity testing as well as objective tests and evaluations. In so doing, the examiner should, to the extent feasible, differentiate symptoms or impacts on functioning from causes other than the Veteran’s service-connected lumbosacral disability and any associated radiculopathy into the lower extremities. Thus, if impairment is present due to previously diagnosed plantar fasciitis or due to other conditions, and if these are distinguishable in their symptoms and effects on functioning from the Veteran’s lumbosacral disability and any associated lower extremity radiculopathy, then symptoms or impairment from these distinguishable conditions should not be considered when addressing symptoms of lumbosacral disability or radiculopathy and their effects on functioning. If, however, symptoms or effects on functioning due to any other conditions are not distinguishable from symptoms or effects on functioning of the Veteran’s lumbosacral disability or radiculopathy, then symptoms and effects on functioning of these other conditions should be included in assessed symptoms and effects on function of lumbosacral disability and any radiculopathy. Further, because the Veteran’s lumbosacral disability and any radiculopathy into each lower extremity are to be rated separately here, the examiner should not consider symptoms and effects on functioning of radiculopathy into each lower extremity when addressing symptoms and effects on functioning of the lumbosacral disability. The examiner must test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for the thoracolumbar spine. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is reminded that he or she should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. Regarding neurological findings, the examiner should identify and comment on the frequency or extent of all neurological symptoms associated with the service-connected low back condition. Any neurological manifestations should be described in detail and the specific nerve should be specified, with the degree of impairment caused by the service-connected disability. The examiner should explain his or her findings and conclusions. 4. Thereafter, readjudicate the remanded claims. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechter The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.