Citation Nr: 21062329 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 16-08 289 DATE: October 7, 2021 REMANDED Entitlement to service connection for degenerative disc disease with spondylosis and multilevel and compression deformity (back condition) is remanded. Entitlement to an initial rating in excess of 20 percent for service-connected bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from December 1964 to June 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions, dated February 2014 and April 2014, issued by a Department of Veterans Affairs (VA) regional office. In February 2021, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. See February 2021 Board Hearing Transcript. 1. Entitlement to service connection for a back condition is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. First, a remand is necessary as the evidence indicates that VA records have not been associated with the claims file. Specifically, the record indicates that the Veteran has received treatment at Cheyenne VA Medical Center (VAMC). However, with the exception of a two-page excerpt, no records relating to such treatment have been associated with the claims file, nor is there any indication that such records have been requested. See Cheyenne VAMC records, received April 2019. As such, a remand is necessary to ensure that all relevant VA treatment records have been obtained and associated with the electronic claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); Bell v. Derwinski, 2 Vet. App. 611 (1992). Second, a remand is necessary to afford the Veteran with an adequate examination regarding the nature and etiology of his claimed back condition. In May 2013, the Veteran underwent a VA examination in which the examiner opined that the Veteran's back condition was less likely than not related to his active duty service. In support of this opinion, the examiner stated that the Veteran's current back condition was due to residuals of a post-service lumbar disc herniation and surgical treatment therefor. See May 2013 VA Back Conditions Disability Benefits Questionnaire (DBQ). However, the examiner did not otherwise elaborate as to why the Veteran's current back condition is attributable to his post-service injury rather than his in-service injury. See id. As such, the Board finds the opinion to be conclusory and, therefore, inadequate. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the examiner noted that the Veteran's post-service injury occurred in approximately 1980, more than 10 years after he separated from service. See May 2013 VA Back Conditions DBQ. However, as noted above, the Veteran served on active duty until June 1973, meaning that the post-service injury occurred less than 10 years following separation. As such, the May 2013 opinion appears to be based, in part, on an inaccurate factual basis. See Reonal v. Brown, 4 Vet. App. 468 (1993). Further, as discussed above, potentially relevant VA treatment records have not been associated with the claims file. As such, the May 2013 examiner was unable to consider the Veteran's prior medical history. See Stefl v. Nicholson, supra. For these reasons, the Board finds the May 2013 VA examination to be inadequate for adjudication purposes. Therefore, a remand is necessary to afford the Veteran with an adequate examination regarding the nature and etiology of his claimed back condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to an initial rating in excess of 20 percent for service-connected bilateral hearing loss is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the AOJ to conduct additional development. First, as discussed above, a remand is necessary to ensure that all relevant VA treatment records have been obtained and associated with the electronic claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); Bell v. Derwinski, supra. Second, a remand is necessary as the evidence indicates that the severity of the Veteran's bilateral hearing loss may have worsened since his last examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Veteran was last afforded a VA examination regarding his bilateral hearing loss in January 2016. See January 2016 VA Hearing Loss and Tinnitus DBQ. Since this examination, the Veteran has asserted that his hearing has worsened. See February 2021 Board Hearing Transcript. Additionally, the Veteran has submitted a private audiologic report indicating that his hearing may have worsened since the January 2016 VA examination. See March 2021 Private Audiologic Report, received April 2021. Therefore, the Board finds that a new VA examination is needed to ascertain the current severity of his bilateral hearing loss. See Snuffer v. Gober, supra; Caffrey v. Brown, supra. The Board acknowledges that the Veteran has submitted the results of a private audiological evaluation. However, it is unclear whether the evaluation utilized the Maryland CNC word list for the speech discrimination test. See March 2021 Private Audiologic Report. As such, the Board finds the March 2021 private evaluation to be inadequate for ratings purposes. See 38 C.F.R. § 4.85(a). Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the electronic claims file any outstanding pertinent medical records, whether VA or private, including records relating to treatment at Cheyenne VAMC. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician regarding the nature and etiology of his claimed back condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be conducted. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including employment and the onset and progression of symptomatology. (b.) For each diagnosed back condition, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service, to include his reported in-service back injury. (c.) In formulating the requested opinions, the examiner is instructed to consider and specifically address: i. The Veteran's reported lay history; ii. The Veteran's lay statements submitted in April 2013, May 2013, February 2014, February 2016, February 2019, and April 2019; and iii. Lay statements submitted by C. Montgomery, R. Garcia, G. Montgomery, E. Montgomery, and F. Bryant in February 2014, and by R. Platt in February 2015. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner is further reminded that the mere absence of in-service evidence of a particular condition as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 3. After completing the development in Section One above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician regarding the severity of his service-connected bilateral hearing loss. All relevant evidence regarding the history of the disability must be made available to the examiner in conjunction with the examination. Pathology, symptoms (frequency, severity, and duration), and all associated impairment of daily and occupational functioning should be described in detail. For each ear, the examiner should: (a.) Conduct appropriate audiometric and speech discrimination testing in conformity with the requirements of 38 C.F.R. § 4.85. (b.) Provide numeric interpretation of any hearing tests/audiograms conducted, setting forth numeric values for each of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz. The examiner is also asked to provide the average pure tone threshold for these four frequencies. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.