Citation Nr: 21069810 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-06 172 DATE: November 19, 2021 REMANDED Service connection for a lumbar spine disability is remanded. Service connection for a bilateral hip disability, to include as secondary to a lumbar spine disability, is remanded. Service connection for a bilateral knee disability, to include as secondary to a lumbar spine disability, is remanded. A compensable disability rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1974 to July 1987 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office. In August 2020, the Veteran testified before the undersigned during a virtual hearing. A transcript of the hearing is included in the electronic claims file. In characterizing the claims on appeal, the Board considered the decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008), which provides that a claim premised on a diagnosis not considered in prior decisions is treated as a new claim without the need for new and material evidence. The VA Regional Office last denied all of the above service connection claims in an October 2013 final rating decision. Since then, records show diagnoses for all of the claims that were not present when they were previously denied, including, for example, a bilateral hip strain (April 2016 VA examination report), status-post lumbar laminectomy, medial facetectomy, foraminotomy, and L4-5 posterior lateral fixation and fusion (December 2013 private surgical records), advanced right knee osteoarthritis with total knee arthroplasty scheduled (January 2020 VA treatment record), and degenerative changes of the left knee (May 2019 VA treatment record). As such, the Board finds that the current claims may be considered without regard to whether new and material evidence has been received. 1. Service connection for a lumbar spine disability is remanded. 2. Service connection for a bilateral hip disability, to include as secondary to a lumbar spine disability, is remanded. 3. Service connection for a bilateral knee disability, to include as secondary to a lumbar spine disability, is remanded. 4. A compensable disability rating for bilateral hearing loss is remanded. As pertinent to all of the claims on appeal, in September 2019, the Veteran reported that he currently receives treatment from Dr. A. Records from this provider were neither requested nor obtained, and an attempt must be made to secure them. Additionally, at the August 2020 hearing, the Veteran testified that in approximately 2013, he filed a claim for workers compensation benefits due to a back injury. He reported that benefits were denied on the basis that he had previous military injuries. These records must also be requested prior to appellate adjudication. With regard to the claim for a lumbar spine disability, bilateral knee disability, and bilateral hip disability, further examinations must be afforded. As for the lumbar spine, the Veteran's service treatment records are replete with documentation of low back problems and treatment, including in July 1974, April 1981, March 1983, April 1984, January 1986, February 1986, March 1986, April 1986, June 1986, September 1986, October 1986, November 1986, January 1987, and February 1987. In August 1986, a Physical Profile was issued for low back pain with numbness and tingling to the feet and legs. On his June 1987 separation examination, the examining physician noted a history of chronic low back pain. Treatment of the knees was documented in April 1986 and June 1986, and treatment of the hips was documented in June 1986. On his June 1987 Report of Medical History at service separation, the Veteran reported having constant pain in the back and hips. A VA examination was conducted in April 2016, but the examiner did not appear to consider any of the actual service treatment records documenting the Veteran's low back symptomatology, and noted only his report of a fall in service. As for the knees and hips, the examiner again made no mention of the pertinent service treatment records, and limited his opinion to the matter of secondary causation. See 38 C.F.R. § 3.310 (secondary service connection may be established for a nonservice-connected disability which is caused by or aggravated by a service-connected disability.) When VA provides an examination, it must ensure that it is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given the above-noted deficiencies, the Board finds that a further examination must be provided. With regard to the claim for a compensable rating for bilateral hearing loss, at the August 2020 hearing, the Veteran testified that his hearing acuity has worsened since his last VA examination, particularly in the left ear, and reported symptomatology not documented on earlier examinations. Hearing Transcript, pp. 15-17. Moreover, contrary to the Court's holding in Martinak v. Nicholson, 21 Vet. App. 447 (2007), on his most recent 2019 VA audiological examination, the examiner failed to describe the functional effects caused by hearing loss. The Board thus finds that an updated examination assessing the current severity of the disability should be provided. See 38 C.F.R. § 3.327(a) (2020); Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 (Authorization to Disclose Information to VA) for the following: (i.) private medical records of Dr. A., and (ii.) all records related to his 2013 workers compensation claim. Thereafter, make two requests for the authorized records from these providers/entities unless it is clear after the first request that a second request would be futile. Document all requests made and all responses received for the claims file. 2. Afford the Veteran a VA examination to obtain evidence addressing the likely etiology of his lumbar spine disability, bilateral knee disability, and bilateral hip disability. A rationale must be provided for all conclusions reached. While a medical opinion is required, the examiner is asked to consider the Veteran's lay reports and may state whether they are medically-consistent or medically-inconsistent with other evidence of record. (A.) Opine on whether it is at least as likely as not that the current lumbar spine disability, bilateral knee disability, and/or bilateral hip disability began during any period of active service or are related to an in-service injury, event, or disease. In this rendering this opinion, please consider the following: Veteran's reports of experiencing continuous symptoms of low back pain, bilateral knee pain, and bilateral hip pain since military service Lumbar Spine o Service treatment records documenting low back problems and treatment, including in July 1974, April 1981, March 1983, April 1984, January 1986, February 1986, March 1986, April 1986, June 1986, September 1986, October 1986, November 1986, January 1987, and February 1987 o August 1986 Physical Profile issued for low back pain with numbness and tingling o June 1987 separation examination documenting a history of chronic low back pain. Bilateral Knees service treatment records of April 1986 and June 1986 documenting problems and treatment Bilateral Hips o service treatment record of June 1986 documenting problems and treatment o June 1987 Report of Medical History on which the Veteran reported having constant pain in the hips. (B.) Opine on whether it is at least as likely as not that the current bilateral knee and/or bilateral hip disability has been (i.) caused, OR (iii.) aggravated (i.e., worsened) by the Veteran's lumbar spine disability. 3. Afford the Veteran a VA examination to ascertain the current severity of his bilateral hearing loss, in accordance with the applicable worksheet for rating the disability. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.