Citation Nr: 21068275 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 18-52 843 DATE: November 9, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1987 to December 1987, April 2002 to August 2002, and April 2003 to August 2003 with additional service in the United States Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated August 2016 and October 2016 of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claims. The Veteran filed a notice of disagreement (NOD) in October 2017 and a statement of the case (SOC) was issued in September 2018. He perfected a timely appeal in November 2018. In October 2020, the Veteran presented sworn testimony during a virtual hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran asserts entitlement to service connection for bilateral hearing loss and a lumbar spine disability, which were incurred during his periods of active duty and active duty for training. See, e.g., the Board hearing transcript dated October 2020. Service connection is granted for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The term "active military, naval, or air service" means active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C. § 101(22)(C); 38 C.F.R. § 3.6(c); see also Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Initially, review of the Veteran's claims file demonstrates that his complete service personnel records from his service in the Air National Guard have not been associated with the claims file. In this regard, the dates of his ACDUTRA and INACDUTRA service remain unclear. As such, the claims on appeal must be remanded in order for the AOJ to attempt to obtain and associate with the Veteran's claims file a complete copy of his Air National Guard service personnel records and to verify all periods of active duty, including his periods of ACDUTRA or INACDUTRA. With respect to the claimed bilateral hearing loss, the March 1987 enlistment examination documented the following audiometric thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 0 40 35 LEFT 10 5 0 0 15 A December 1990 periodic examination documented continued high frequency hearing loss in the right ear and the Veteran was placed on a physical profile for high frequency hearing loss of the right ear in August 1992. A December 2000 examination documented bilateral hearing loss. The Veteran was afforded a VA examination in July 2016 at which time the examiner confirmed a diagnosis of bilateral hearing loss sufficient for VA compensation purposes. As to the question of nexus, the examiner stated, "[t]here are audiograms dated 3/9/87 and 12/8/90 showing normal hearing left ear and hearing loss right ear. There is no significant shift in hearing from the 3/1987 audiogram compared to the 12/1990." The examiner continued, "[t]he next audiogram found in the service treatment records is dated 12/6/2000 showing bilateral hearing loss. There is a significant shift in hearing from the 12/90 audiogram compared to the 12/00 audiogram; however, this is during a time period of when the Veteran was not on active duty." The examiner further stated, "[a]lthough the MOS from 1987 concedes high probability of noise exposure there is no shift in hearing from 3/87 audiogram compared to the 12/90 audiogram." The examiner then stated, "I am unable to determine if a further shift in hearing occurred during active duty military service and thus I am unable to determine the etiology of the hearing loss without resorting to mere speculation." Critically, in rendering his opinion, the examiner did not address whether the Veteran's hearing loss, which clearly pre-existed certain periods of active duty service, was aggravated thereby. In support of his claim, the Veteran submitted a November 2017 letter from Dr. K.A., in which he stated that the Veteran's current hearing loss is more likely than not related to the acoustic trauma he experienced in service. He indicated that the Veteran had a "very long history of exposure to loud noises during his military service. The patient served in the Air Force and worked on the airstrips." Dr. K.A. concluded, "[t]his exposure not only has caused bilateral sensorineural hearing loss, but also bilateral tinnitus. I feel medically certain that the patient's hearing loss can continue even after the original trauma." Critically, in rendering his opinion, Dr. K.A. did not recognize that the Veteran only had selected periods of active duty and ACDUTRA service throughout the duration of his Air National Guard service. Moreover, Dr. K.A. did not address the significance, if any, of the Veteran's occupational noise exposure. As to the claimed lumbar spine disability, service personnel records show that the Veteran was assigned a 30 day TDY to Prince Sultan Air Base in Saudi Arabia from January 13, 2001. Service treatment records (STRs) dated January 24, 2001 showed that the Veteran complained of a back spasm of one week duration. He reported that he "goes to chiropractor regularly at home." See the STR dated January 2001. A January 2001 Line of Duty Determination noted that the Veteran's medical condition most likely existed prior to service, but possibly aggravated by military service. In February 2001, he indicated that his lumbar back pain began during his flight to Saudi Arabia. He was diagnosed with sacroiliitis and somatic dysfunction of the sacral region at that time. See the STR dated February 2001. The Veteran returned for follow-up treatment in February 2001 and reported that his symptoms had resolved, except for stiffness in the upper lumbar area. He was diagnosed with somatic dysfunction of the lumbar region. See the STR dated February 2001. An August 2003 post-deployment health assessment noted the Veteran's report that he experienced back pain during his deployment. A July 2004 x-ray of the lumbar spine revealed minimal degenerative arthritis changes. The Veteran was afforded a VA examination in October 2016 at which time examiner diagnosed DDD of the lumbar spine. As to the question of nexus, the examiner opined, "[i]t is less likely than not that the veteran's current back condition is related to complaints in service it is more likely than not related to normal age progression and current physical occupation as a farmer." The examiner indicated, "Veteran was diagnosed with somatic dysfunction in service most likely a strain. Strains and sprains are self-limiting conditions unless there are documented patterns of medical visits for recurrent pains or progression of symptoms. Veteran's STR'S stated was having chiropractic treatment prior to deployment." Critically, in rendering his opinion, the examiner did not address whether the Veteran's back disability, which may have pre-existed certain periods of his active duty/ACDUTRA service, was aggravated thereby. Additionally, the examiner failed to address the Veteran's contentions of experiencing low back pain throughout the course of his service in the Air National Guard. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) (stating that "[t]he examiner must address the veteran's lay statements to provide the Board with an adequate medical opinion"). Accordingly, the medical evidence currently of record is therefore inadequate to resolve the claims of entitlement to service connection for bilateral hearing loss and lumbar spine disability. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). Upon remand, updated VA medical opinions should be obtained to address outstanding questions of nexus and aggravation with respect to both claims. The matters are REMANDED for the following action: 1. Contact the appropriate records custodians in an attempt to obtain the Veteran's complete service personnel records from his service in the Air National Guard, and to confirm the exact dates and status of the Veteran's service to include specific periods of ACDUTRA, INACDUTRA, or other service. Any response should be associated with the Veteran's claims file. If said records cannot be obtained, provide the Veteran specific notice of the unavailability of these records pursuant to 38 C.F.R. § 3.159(e)(1). All such available records should be associated with the Veteran's claims file. 2. The AOJ shall refer the VA claims file to a clinician with appropriate expertise to provide an opinion as to the claimed bilateral hearing loss disability. The clinician is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. If the clinician determines that an examination is necessary, one should be scheduled. The clinician should then respond to the following: Is it at least as likely as not that any current hearing loss: (a) had its inception during a period of active duty or ACDUTRA?; (b) is the result of a disease or injury which occurred during a period of active duty or ACDUTRA?; (c) is the result of aggravation of a pre-existing hearing loss disability during a period of active duty or ACDUTRA? In addressing the above, the examiner must consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how hearing loss is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? In this regard, the examiner should note that the absence of evidence of treatment for claimed disabilities in the Veteran's service treatment records should not serve as the sole basis for a negative opinion. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 3. The AOJ shall refer the VA claims file to a clinician with appropriate expertise to provide an opinion as to the claimed lumbar spine disability. The clinician is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. If the clinician determines that an examination is necessary, one should be scheduled. The clinician should then respond to the following: Is it at least as likely as not that any current lumbar spine disability to include DDD: (a) had its inception during a period of active duty or ACDUTRA?; (b) is the result of a disease or injury which occurred during a period of active duty or ACDUTRA?; (c) is the result of aggravation of a pre-existing lumbar spine disability during a period of active duty or ACDUTRA? In addressing the above, the examiner must consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how his diagnosed lumbar spine disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? In this regard, the examiner should note that the absence of evidence of treatment for claimed disabilities in the Veteran's service treatment records should not serve as the sole basis for a negative opinion. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.