Citation Nr: 21062555 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 14-23 540 DATE: October 8, 2021 REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a right hip disability is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from August 1982 to December 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board granted the Veteran's petition to reopen his claim for service connection for a lumbar spine disability and remanded the issues of entitlement to service connection for lumbar spine and right hip disabilities and entitlement to a compensable rating for bilateral hearing loss. In September 2020, the Board remanded this matter for additional development. The matter has now returned to the Board for further appellate consideration. 1. Entitlement to a compensable rating for bilateral hearing loss is remanded. The Veteran asserts he is entitled to a compensable rating for his bilateral hearing loss. The Board finds that additional development is necessary prior to appellate review of this claim. A November 2020 VA audiology diagnostic study note shows that the Veteran underwent audiological testing which revealed normal hearing through 1000 hertz (Hz) and mild to severe sensorineural hearing loss from 1500 Hz to 8000 Hz, bilaterally, as determined by the examining audiologist. However, the full audiogram results are not in the electronic claims file available to the Board. To afford the Veteran every possible consideration, on remand, the RO should obtain the November 2020 audiogram results, document all attempts to obtain the evidence, and, if the audiogram is not available, a formal finding of unavailability should be made. 2. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran asserts he is entitled to service connection for a lumbar spine disability, to include as secondary to his service-connected bilateral knee disabilities. The Board finds that additional development is necessary prior to appellate review of this claim. In October 2019 and July 2021, additional VA medical opinions were obtained as to the likely etiology of the Veteran's lumbar spine disability. The October 2019 VA examiner provided opinions as to direct service connection and secondary aggravation by the Veteran's service-connected knee disabilities, and the July 2021 VA examiner provided an opinion as to direct service connection. On review, the Board finds the October 2019 and July 2021 VA medical opinions inadequate for the following reasons. First, the October 2019 VA examiner did not provide an opinion as to secondary causation by the Veteran's service-connected knee disabilities, which renders the opinion inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that an opinion will be considered inadequate unless it addresses both the caused by and aggravation avenues for secondary service-connection). Thus, remand is required to obtain an opinion that addresses both secondary causation and aggravation. Second, while the October 2019 VA examiner determined that scoliosis, spondylosis, and spondylolisthesis are congenital conditions, the Board requires further clarification as to whether the Veteran's diagnoses are congenital defects, congenital diseases, or acquired disabilities, since the legal analysis differs depending on how the diagnosis is classified. Third, the July 2021 VA examiner improperly relied on the absence of in-service and post-service treatment records in providing a negative opinion as to direct service connection. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board emphasizes that a Veteran's lay statements of symptomatology need not be corroborated by contemporaneous medical records to constitute competent evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Therefore, remand is also required to obtain an adequate opinion as to direct service connection. Fourth, while the July 2021 VA examiner noted current diagnoses of lumbosacral strain, osteopenia, and lumbar spondylosis, the medical opinion only addressed the likely etiology of the Veteran's lumbar spondylosis and osteopenia. On remand, the VA examiner should ensure to provide medical opinions as to each currently diagnosed lumbar spine disability. 3. Entitlement to service connection for a right hip disability is remanded. The Veteran asserts he is entitled to service connection for a right hip disability, to include as secondary to his service-connected bilateral knee disabilities. The Board finds that additional development is necessary prior to appellate review of this claim. In October 2019 and July 2021, additional VA medical opinions were obtained as to the likely etiology of the Veteran's right hip disability. The October 2019 VA examiner provided an opinion as to secondary aggravation by the Veteran's service-connected knee disabilities, and the July 2021 VA examiner provided an opinion as to direct service connection. On review, the Board finds the October 2019 and July 2021 VA medical opinions inadequate for the following reasons. First, the October 2019 VA examiner did not provide an opinion as to secondary causation by the Veteran's service-connected knee disabilities, which renders the opinion inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that an opinion will be considered inadequate unless it addresses both the caused by and aggravation avenues for secondary service-connection). Thus, remand is required to obtain an opinion that addresses both secondary causation and aggravation. Second, the July 2021 VA examiner improperly relied on the absence of in-service and post-service treatment records in providing a negative opinion as to direct service connection. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board emphasizes that a Veteran's lay statements of symptomatology need not be corroborated by contemporaneous medical records to constitute competent evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Therefore, remand is also required to obtain an adequate opinion as to direct service connection. Third, while the July 2021 VA examiner noted current diagnoses of right hip osteoarthritis, osteopenia, and right hip strain, the medical opinion only addressed the likely etiology of the Veteran's osteoarthritis and osteopenia. On remand, the VA examiner should ensure to provide medical opinions as to each currently diagnosed right hip disability. Accordingly, the matters are REMANDED for the following action: 1. Obtain the results from the VA audiogram conducted on November 19, 2020 and associate it with the electronic claims file for the Board's review. All attempts to obtain this evidence should be documented. If the audiogram is unavailable, a formal finding of unavailability should be sent to the Veteran and his representative and a copy should be associated with the record. ** ATTENTION: The Board is NOT requesting the November 19, 2020 VA audiology diagnostic study note, which has already been associated with the claims file. Rather, the Board is requesting the results of the audiogram that was conducted on November 19, 2020. 2. Obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran's lumbar spine disability, preferably from the VA examiner who conducted the July 2021 VA back examination, if possible. If this is not possible, the opinion should be rendered by another appropriate examiner. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a thorough review of the claims file, the examiner is asked to respond to the following: (a) Identify all currently diagnosed lumbar spine disabilities. (b) For each currently diagnosed lumbar spine disability, the examiner is asked to respond to the following: i. Is the diagnosis a (1) congenital "defect"; or (2) a congenital "disease"; or (3) an acquired disability? For VA purposes, "defects" are usually static in nature, whereas "diseases" are generally subject to episodic improvement or worsening. ii. IF the diagnosis is a congenital DEFECT, is it at least as likely as not (50 percent probability or greater) that a superimposed disease or injury occurred during military service that resulted in an additional disability apart from the congenital defect? iii. IF the diagnosis is a congenital DISEASE, was it at least as likely as not (50 percent probability or greater) aggravated beyond its natural progression by the Veteran's military service? iv. IF the diagnosis is an ACQUIRED DISABILITY, provide opinions as to the following: a. Whether it at least as likely as not (50 percent probability or greater) had its onset during or is otherwise related to the Veteran's military service. b. Whether it is at least as likely as not (50 percent probability or greater) proximately due to OR aggravated by the Veteran's service-connected bilateral knee disabilities. * Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non- service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). 3. Obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran's right hip disability, preferably from the VA examiner who conducted the July 2021 VA hip examination, if possible. If this is not possible, the opinion should be rendered by another appropriate examiner. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a thorough review of the claims file, the examiner is asked to respond to the following: (a) Identify all currently diagnosed right hip disabilities. (b) For each currently diagnosed right hip disability, provide an opinion as to the following: i. Whether it at least as likely as not (50 percent probability or greater) had its onset during or is otherwise related to the Veteran's active service. ii. Whether it is at least as likely as not (50 percent probability or greater) proximately due to OR aggravated by the Veteran's service-connected bilateral knee disabilities. * Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non- service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). 4. Lastly, readjudicate the remanded claims on appeal. In so doing, ensure that all applicable theories of entitlement are addressed. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.