Citation Nr: 21003427 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 12-04 375 DATE: January 21, 2021 REMANDED Entitlement to service connection for hearing loss, right ear, is remanded Entitlement to service connection for low back condition is remanded. Entitlement to service connection for left hip condition is remanded. Entitlement to service connection for left knee condition is remanded. Entitlement to service connection for cholecystitis s/p cholecystectomy (claimed as gallbladder condition), as due to exposure to herbicide agents, is remanded. Entitlement to service connection for gastroesophageal reflux disorder (GERD), as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1969 to March 1972. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In February 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a live Board Hearing. A transcript of the hearing is of record. These matters were previously before the Board in August 2017 and October 2019, where they were remanded for additional development. The Board notes that there was not substantial compliance with its October 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Regrettably, another remand is necessary. 1. Entitlement to service connection for hearing loss, right ear, is remanded. In October 2019, the Board remanded the Veteran’s claim for additional development; specifically requesting that the Veteran be provided a new VA examination and opinion that adequately addresses the nature and etiology of the claimed condition. The basis for this request was due to the inadequacy of the June 2009 VA examination/opinion, where the examiner improperly relied on the fact that hearing loss was not demonstrated during active duty service to negatively conclude no etiological relationship exists, in direct contrast of the legal authority in Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the fact that hearing loss was not demonstrated during active duty is not fatal to the Veteran’s claim, and evidence of a current hearing disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection of hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service). See BVA Decision, October 2019. Additionally, the Board noted that the Veteran’s service treatment records revealed the Veteran had right ear hearing loss at 500 Hertz during his enlistment examination in August 1969, pursuant to Hensley; however, further noted that this right ear hearing loss does not constitute hearing loss for VA purposes, according to McKinney v. McDonald, 28 Vet. App. 15 (2016) (holding that for a hearing defect to be noted at service entrance, it must meet the criteria set forth in 38 C.F.R. § 3.385), and therefore, the Veteran did not have a pre-existing right ear hearing loss disability at service entrance. Id. In October 2020, the Veteran was afforded a new VA examination and opinion, in response to the Board’s October 2019 remand. However, upon review, the Board finds this opinion to be inadequate for adjudicative purposes, as this examiner also improperly relied on the fact that hearing loss was not demonstrated during active duty service to negatively conclude no etiological relationship exists, in direct contrast to the legal authority in Hensley; as well as, improperly relied on the absence of medical evidence showing symptoms, complaints, or treatments for a hearing decrease in service. See C&P Exam, October 2020. Additionally, the examiner inaccurately reported that the Veteran’s enlistment examination revealed normal hearing thresholds in the right ear, as the October 2019 Board remand discusses that the Veteran had right ear hearing loss at 500 Hertz during his enlistment examination in August 1969. Id. Therefore, the Board finds that the Veteran should be provided an addendum VA medical opinion that adequately addresses the Veteran’s claim, prior to re-adjudication and in compliance with Stegall. Accordingly, a remand is necessary to address the matters discussed above. 2. Entitlement to service connection for low back condition is remanded. 3. Entitlement to service connection for left hip condition is remanded. 4. Entitlement to service connection for left knee condition is remanded. In October 2019, the Board remanded the Veteran’s claims for additionally development; specifically requesting that the Veteran be provided new VA examinations and opinions that adequately addressees the nature and etiology of the claimed conditions. The basis for these requests were due to the inadequacies of the April 2018 VA examinations/opinions, where the examiner failed to discuss and/or consider the conceded in-service element of a helicopter hard crash landing while rendering the unfavorable opinions, resulting in a complete dismissal of the Veteran’s contended relationship to service, solely based on the lack of medical complaints and/or treatment in service. See BVA Decision, October 2019. In October 2020, the Veteran was afforded new VA examinations and opinions, in response to the Board’s October 2019 remand. However, upon review of each, the Board finds these opinions to be inadequate for adjudicative purposes, as this examiner also improperly relied on the absence of medical evidence showing symptoms, complaints, or treatments of a low back condition, left hip condition, or left knee condition in service, as a sole basis for the unfavorable opinions given, without consideration or discussion of the conceded in-service element of a helicopter hard crash landing as a possible etiological relationship to the Veteran’s current conditions. See C&P Exam, October 2020. Therefore, the Board finds that the Veteran should be provided addendum VA medical opinions that adequately addresses the Veteran’s claims, prior to re-adjudication and in compliance with Stegall. Accordingly, a remand is necessary to address the matters discussed above. 5. Entitlement to service connection for cholecystitis s/p cholecystectomy (claimed as gallbladder condition), as due to exposure to herbicide agents, is remanded. 6. Entitlement to service connection for gastroesophageal reflux disorder (GERD), as due to exposure to herbicide agents, is remanded. In October 2019, the Board remanded the Veteran’s claims for additionally development; specifically requesting that the Veteran be provided new VA examinations and opinions that adequately addressees the nature and etiology of the claimed conditions. The basis for these requests were due to the inadequacies of the April 2018 VA examinations/opinions, where the examiner solely relied on the fact that the Veteran’s conditions are not listed as a presumptive health disorder due to herbicide exposure under 38 C.F.R. § 3.309(e) to support the unfavorable opinions given. See BVA Decision, October 2019. In October 2020, the Veteran was afforded new VA examinations and opinions, in response to the Board’s October 2019 remand. However, upon review of each, the Board finds these opinions to be inadequate for adjudicative purposes, as this examiner also relied on the fact that the Veteran’s conditions are not listed as a presumptive health disorder due to herbicide exposure under 38 C.F.R. § 3.309(e), as well as, improperly relied on the absence of medical evidence showing symptoms, complaints, or treatments of cholecystitis or GERD in service, to support the unfavorable opinions given. See C&P Exam, October 2020. Therefore, the Board finds that the Veteran should be provided addendum VA medical opinions that adequately addresses the Veteran’s claims, prior to re-adjudication and in compliance with Stegall. Accordingly, a remand is necessary to address the matters discussed above. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom the Veteran has received treatment for his right ear hearing loss, low back condition, left knee condition, left hip condition, cholecystitis, and GERD, and obtain any outstanding records and associate them with the Veteran’s claims file. 2. After associating all newly acquired records with the claims file, provide the Veteran addendum VA medical opinions by appropriate clinicians to determine the nature and etiology of the Veteran’s right ear hearing loss, low back condition, left knee condition, left hip condition, cholecystitis, and GERD. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. Following complete review of the record, the examiner must address the following: (a) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right ear hearing loss was incurred in or aggravated during service, or is otherwise etiologically related to service, to include the conceded in-service combat noise exposure. Please note: the examiner must discuss the right ear hearing loss at 500 Hertz during the Veteran’s enlistment examination in August 1969, according to Hensley. (b) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back, left knee, and left hip conditions had its onset during any period of active military duty, or is otherwise etiologically related to service, to include the conceded in-service event of the helicopter hard crash landing. (c) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s cholecystitis and GERD had its onset during any period of active military duty, or is otherwise etiologically related to service, to include the conceded in-service exposure to herbicide agents. 3. Any opinion should include a detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran’s lay statements regarding the nature, onset, and chronicity of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that his reports must be considered in formulating the requested opinion. 4. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of   medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382. (2010). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, 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.