Citation Nr: A21018564 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 210719-173364 DATE: November 19, 2021 ORDER Entitlement to service connection for a low back condition is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The evidence of record is against a finding that the Veteran has had a low back condition, to include functional impairment due to pain, at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 2004 to September 2004 and from January 2005 to August 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2021 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, an August 2020 rating decision denied service connection for bilateral hearing loss and an April 2021 rating decision denied service connection for a low back strain. In July 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the August 2020 and April 2021 rating decisions. In July 2021, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the initial rating decisions. In the July 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decisions in August 2020 and April 2021. 38C.F.R. § 20.301. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Entitlement to service connection for a low back condition is denied. The Veteran asserts that her low back condition is attributable to her active service. Specifically, she noted that the onset was in 2004 during PT and treated ot with over-the-counter medication. VA medical records note complaints from the Veteran regarding pain associated with her low back. The Veteran was afforded a VA back conditions examination in April 2021. The Veteran reported that she had intermittent back pain that was stable, and had not sought medical care. The Veteran reported no flare-ups or function loss or impairment, including, but not limited to after repeated use over time. Initial range of motion testing was normal, and there was no evidence of pain, crepitus, localized tenderness, or pain on palpation. The Veteran was able to perform repetitive use testing and had no additional loss of function or range of motion after three repetitions. Further, muscle strength, reflex, and sensory examinations were all normal. The examiner note that the February 2017 lumbar X-rays were shown to be normal. The examiner concluded that she was unable to confirm a current chronic diagnosis with current available records and the in-person exam. While the Veteran believes she has a current low back condition, she has not shown the required medical knowledge or training to provide a competent diagnosis in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which shows no current diagnosis, to include functional impairment due to pain, to be present during the appeal period. Therefore, as there is no current diagnosis of a low back condition, service connection is denied. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that her bilateral hearing loss is etiologically related to service. Specifically, she states that her hearing loss is due to working on the flight line while assigned to funeral services. Notably, the service treatment records (STRs) contain only an entrance examination audiology report, which showed normal hearing bilaterally. Under the Appeals Modernization Act (AMA), the reasons for remand are limited to: (a) correction of pre-decisional duty to assist errors; and (b) correction of an AOJ error in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802(a). Following correction of the error, the AOJ must readjudicate the issue. Pub. L. No. 115-55, § 2(d)(2); 38 C.F.R. § 3.2502. An appellant may choose to file a new appeal to the Board from such readjudication or request higher-level review or a supplemental claim with the AOJ. In this instance, in the August 2020 rating decision, the AOJ committed a pre-decisional duty to assist error by relying on the inadequate August 2020 VA examination. Examination revealed bilateral sensorineural hearing loss. The examiner indicated that the puretone test was not valid for rating purposes because they were not in agreement with the speech reception thresholds. The examiner noted that the results of the evaluation indicated possible non-organic hearing loss, but the results were not reliable to make a decision about whether hearing loss is truly present. The examiner opined that the possible hearing loss was less likely than not incurred in or caused by the Veteran's military service. However, the examiner did not address the Veteran's contention that she was exposed to loud noise on the flight line. Because the examiner noted that the exam was not valid for rating purposes and did not provide a proper opinion that considered the Veteran's military duties and lay statements, the examination is inadequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As the August 2020 rating decision relied on the inadequate examination, the AOJ committed a pre-decisional duty to assist error; and therefore, the Board finds that a new VA audiometric examination and opinion are warranted. The matters are REMANDED for the following action: Schedule the Veteran for a VA audiometric examination with the appropriate clinician. The relevant documents in the record and a copy of this REMAND should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran, including when symptoms of hearing loss first manifested and/or whether such symptoms have continued from service separation to the present. All indicated studies should be performed. The VA examiner should state whether it at least as likely as not (50 percent or higher degree of probability) that the Veteran's bilateral hearing loss incurred in or is otherwise related to active service, to include noise exposure while working on the flight lines. (Continued on the next page) A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, 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.