Citation Nr: 21067612 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 19-18 673 DATE: November 4, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a rating in excess of 20 percent for a low back disability is remanded. Entitlement to an earlier effective date, prior to January 28, 2015, for the grant of service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran had active duty service from March 1966 to March 1986, to include service in Vietnam, for which he received multiple medals for heroism. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a June 2019 rating decision, the RO granted an increased rating for a low back disability to 20 percent, effective January 28, 2015. In July 2019, the RO issued a supplemental statement of the case denying an effective date prior to January 28, 2015 for the grant of service connection for a low back disability. In June 2019, the Veteran submitted his substantive appeal (VA Form-9) and requested a Board hearing by live videoconference. In March 2021, the appellant withdrew his request for a Board hearing, waiving any in person appearance, and asked that the Board make a decision based on the record. 38 C.F.R. §§ 20.702 (e), 20.704(e). The Board notes that the Veteran's claim for service connection for bilateral hearing loss was denied by a final RO rating decision in August 1986. However, relevant service department records that existed at the time of the prior denial but were not associated with the claims file at that time, were associated with the record in February 2015. As such, the Veteran is entitled to de novo review of his claim for service connection for bilateral hearing loss. 38 U.S.C. § 501(a); 38 C.F.R. § 3.156(c). The Board acknowledges that in October 2019, the Veteran's representative attempted to request higher-level review under the Appeals Modernization Act (AMA). However, as the Board had already certified the appeal, the request for adjudication under the AMA was not timely. Furthermore, the forms that were submitted requesting higher-level review were not properly completed, as the box indicating a request to withdraw from Legacy and opt-in was not marked. June 2019 correspondence to the Veteran specifically advised that the opt-in box on the form must be checked. For these reasons, and the desire of the Veteran to have the Board review the appeal, as discussed above, the Board will proceed with appellate review under the Legacy system. This claim has been advanced on the docket pursuant to 38 C.F.R. § 20.900. 1. Entitlement to service connection for bilateral hearing loss is remanded 2. Entitlement to a rating in excess of 20 percent for a low back disability is remanded The Veteran contends that his bilateral hearing loss should be service connected because it is due to his years of service as a helicopter pilot. He also maintains that his low back condition should be rated in excess of 20 percent and the effective date should be prior to January 28, 2015. The Veteran specifically challenges the competency of the examiners performing the VA audiological examination and the VA back examination, each examination being performed in April 2019. As such, the Veteran has requested the credentials of these examiners. The Federal Circuit Court has held that the requirement that a Veteran raise the issue of the competency of the VA medical examiner is best referred to simply as a "requirement" and not a "presumption of competency." Francway v. Wilkie, 940 F.3d 1304, 1307-09 (Fed. Cir. Oct. 15, 2019). To challenge the competency of the VA medical examiner, a claimant is required to raise this challenge in the first instance. Id. Once the claimant has met this requirement and the challenge is raised, VA must satisfy its burden of persuasion as to the examiner's qualifications and respond to the challenge by providing information about the qualifications of a medical examiner to the Veteran. Id. However, as it pertains to the back examination, the Board finds the April 2019 VA examination to be inadequate. Thus, the Veteran should be afforded a new VA back examination and the credentials of the new examiner should be provided to the Veteran. At the April 2019 VA back examination, the Veteran reported that his low back pain had worsened over the years. He also explained that his back is worse when it locks up, and it does this every 2 to 3 months. During the periods in which his back is locked up he is unable to move. He can do nothing except lay in bed and wait for the back to unlock. In making all determinations, the Board must fully consider the lay assertions of record. The examiner failed to adequately consider increased low back symptomology due to repeated use over time or flare-ups. The examiner stated that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over time or with flare-ups. However, this is completely contrary to the Veteran's statements regarding the worsening of his low back symptoms and that his back will completely lockup every 2 to 3 months. The examiner indicated that additional functional loss due to repeated use over time or due to flare-ups could not be described in terms of range of motion. It was stated that based on the examiner's clinical knowledge and medical expertise such a determination was not necessary. In Sharp v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. While the VA examiner indicated that there was no ankylosis, the examiner did not consider whether the Veteran's lay statements showed the functional equivalent of favorable or unfavorable ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (stating that the rating criteria for a lumbar spine disability can be met with evidence of the functional equivalent of ankylosis during a flare-up). The examiner did not elicit information from the Veteran to adequately consider additional functional loss due to repeated use over time or flare-ups. As this appeal is being remanded for a new VA back examination, the agency of original jurisdiction should update the Veteran's VA treatment records and provide the Veteran with a VA Form 21-4142 to obtain any private treatment records for a low back disability. 3. Entitlement to an earlier effective date, prior to January 28, 2015, for the grant of service connection for a low back disability is remanded The earlier-effective-date claim is "inextricably intertwined" with the increased-rating claim for the low back disability being remanded and, therefore, consideration of the earlier-effective-date claim must be deferred pending completion of the additional development required concerning the increased-rating claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain all relevant VA medical records not currently associated with the record. 2. Ask the Veteran to complete a VA Form 21-4142 for any private medical provider of treatment for a low back disability. If the Veteran does not respond, make a follow-up request for completion of VA Form 21-4142. Make two requests for the authorized records from each provider unless it is clear after the first request that a second request would be futile. 3. Provide to the Veteran, and his representative, information about the qualifications of the medical examiners that conducted the April 2019 VA audiological examination and the April 2019 VA back examination. The Veteran, and his representative, should also be provided information regarding the qualifications of the examiner that will be conducting the new VA back examination. 4. Schedule the Veteran for a new VA examination to determine the current severity and manifestations of his low back disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is instructed to review all pertinent records associated with the claims file. The examiner must consider whether the evidence of record, to include the Veteran's lay statements, shows the functional equivalent to favorable or unfavorable ankylosis under Diagnostic Code 5242. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran's low back disability under the rating criteria. The examiner should also provide the range of motion in degrees. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. The examiner shall inquire as to periods of flare-up and note the frequency and duration of any such flare-ups. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After completing the requested actions, and any additional action deemed warranted, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.