Citation Nr: 20042018 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 14-35 839 DATE: June 19, 2020 REMANDED 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from January 1968 to January 1972. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision. In November 2017, a videoconference hearing was held before the undersigned; a transcript is in the record. In March 2018, the matters were remanded for additional development. 1. Entitlement to service connection for bilateral hearing loss is remanded. The Board finds that there has not been substantial compliance with previous remand directives, and that corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the March 2018 remand, the Board directed the AOJ to secure for the record the 1972 report of a pre-employment physical examination conducted by the U.S. Department of the Treasury in Kansas City. The record reflects that November 2019 and February 2020 correspondence the AOJ sought such records from the U.S. Treasury Department in Kansas City. The record does not contain any response to these requests. Without a response (of either the Veteran’s records, or an affirmative response that such records either do not exist or are unavailable) pertinent evidence in the matter at hand, constructively of record, remains outstanding. Under the cited governing caselaw, a remand to ensure compliance with the Board’s previous directives is necessary. 2. Entitlement to service connection for a low back disability is remanded. The Board finds that further development of the record is necessary. It is not in dispute that the Veteran receives ongoing treatment related to low back pain. The Veteran has alleged that he sustained a low back injury during a mortar attack in service. The Veteran’s allegations of a back injury in-service (which the Board find reasonably credible) establishes an occurrence of an injury in-service. The Veteran also testified that had a postservice slip-on-ice accident. Whether his current low back disability is related to his reported injury in service (which is deemed credible), or as due entirely to another postservice etiology is a medical question. Accordingly, a medical advisory opinion in the matter is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following: 1. Obtain for the record, the report of the Veteran’s pre-employment physical examination by the U.S. Department of the Treasury in Kansas City in 1972. Records held by the VA as well as other federal agencies are constructively of the record. If the examination report is unavailable, it should be noted in the record, with explanation (that records were not created, or have been lost or destroyed), and the Veteran should be so notified. [Note, if a Federal Agency does not respond to a VA request for records which have been identified, VA is required to follow-up with requests, until a response is received.] Advise the respective Agency that if such records are not available, it must be so certified with explanation (lost or destroyed, or no evidence ever existed). 2. Arrange for an orthopedic examination of the Veteran to ascertain the nature and likely etiology of his back disability. The Veteran’s record (to include his statements and testimony describing injuries in service and the postservice slip and fall injury) must be reviewed by the examiner. The examiner should: (a.) Identify (by diagnosis) each back disability entity found. (b.) Identify the likely etiology of each back-disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that it is related to service (accepting as credible his report of a back injury in service)? All opinions must include rationale. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, Associate Counsel 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.