Citation Nr: 21004139 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 09-32 018 DATE: January 26, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to an increased rating for chronic lumbar spine myofascial sprain claimed as low back pain (“low back disability”), rated initially as 10 percent disabling; as 20 percent disabling form April 5, 2016; and as 40 percent disabling from September 24, 2019, is remanded. Entitlement to a total disability based on individual unemployability by reason of service-connected disabilities (TDIU) is remanded. REASONS AND BASES FOR REMAND The Veteran served on active duty in the Army from April 1973 to April 1976. The Board remanded the issues in December 2018. With regard to the claim for service connection for hearing loss, the AOJ was instructed to associate treatment records with the claims file, including from Otorhinolaryngology Associates. In September 2019, the Veteran was sent a letter requesting the treatment records. In response, the Veteran authorized VA to obtain treatment records from a different facility and those records have been associated with the claims file. The Board therefore finds there has been substantial compliance with the remand directives with regard to the claim for service connection for hearing loss. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). In November 2020, the Veteran testified at a videoconference hearing before the undersigned and a transcript of that hearing is of record. 1. Entitlement to service connection for hearing loss is remanded The Veteran’s last examination was in 2014 which found that his current hearing loss did not meet the requirements for a disability based on 38 C.F.R. § 3.385. The Veteran testified before the undersigned in November 2020 that his bilateral hearing loss has worsened since his last examination. As a result, another VA examination should be scheduled to determine whether the Veteran’s hearing loss now has risen to the level of a disability for VA purposes. 2. Entitlement to an increased rating for the low back disability is remanded. Unfortunately, another remand is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. During the November 2020 Board hearing, the Veteran testified that his low back disability had worsened since the last examination. Specifically, in the September 2019 VA back examination, the Veteran was found to have no symptoms of radiculopathy; however, in the November 2020 Board hearing, the Veteran asserted that he was having radicular symptoms in the bilateral lower extremities and his doctor told him he would need surgery or he would be paralyzed eventually. The Board acknowledges that the Veteran is in receipt of service connection for left lower extremity radiculopathy associated with the low back disability, but he is not service-connected for right lower extremity radiculopathy. Thus, due to evidence of worsening symptomatology, the Board finds that a new VA examination is necessary. Finally, the Veteran also testified in the Board hearing that there were outstanding relevant treatment records. Specifically, he indicated that he was being treated at Healthstar Chiropractic, most recently a month or two prior to the Board hearing, and he had not submitted the records to VA. As such, remand is necessary to associate all relevant treatment records with the claims file. 3. Entitlement to a TDIU is remanded. Any decision on the increased rating claim being remanded herein may affect the claim for a TDIU. Consideration of entitlement to a TDIU must therefore be deferred until the intertwined issue is resolved or prepared for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide sufficient information, and if necessary, authorization, to enable the AOJ to obtain any relevant outstanding non-VA treatment records, to specifically include admission and treatment records from Healthstar Chiropractic. The AOJ should make an attempt to obtain any treatment records identified by the Veteran that are not currently associated with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hearing loss disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the reported exposure to noise in service. 3. Schedule the Veteran for a VA back examination to ascertain the severity and manifestations of his service-connected low back disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is asked to review all relevant records and conduct a clinical evaluation. Based on this review, the examiner is asked to provide an assessment of the current nature of the Veteran’s low back disability. Ranges of motion (ROM) should be tested actively and passively, in weight-bearing and nonweight-bearing, and after repetitive use. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; and, (2) as a result of pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Nelson 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.