Citation Nr: 21073778 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 16-63 698 DATE: December 10, 2021 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for a low back disability is granted. REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a bilateral hearing loss is remanded. Entitlement to service connection for an intestinal disorder, to include irritable bowel syndrome (IBS), is remanded. FINDINGS OF FACT 1. An unappealed September 2012 Board decision denied entitlement to service connection for a low back disability. 2. Evidence associated with the record since the September 2012 Board decision relates to unestablished facts and raises a reasonable possibility of substantiating the claims of entitlement to service connection for a low back disability. CONCLUSIONS OF LAW 1. The April 2012 Board decision is final. 38 U.S.C. § 4004(b); 38 C.F.R. § 19.104. 2. New and material evidence has not been received sufficient to reopen a claim of entitlement to service connection for a low back disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1979 to October 1982, with additional reserve service. This case comes before the Board of Veterans' Appeals (Board) on appeal from November 2015 and April 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in September 2019, at which time the issues currently on appeal were remanded for additional development. Specifically, the claims were remanded to obtain outstanding treatment records and for etiological opinions. These actions have been performed and the Board therefore determines that there has been substantial compliance with its previous remand. The case has now been returned to the Board for further appellate action. Petition to Reopen Generally, a claim which has been denied in an unappealed Board decision or an unappealed agency of original jurisdiction (AOJ) decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order to be new and material evidence, the evidence must not be cumulative or redundant, and must raise a reasonable possibility of substantiating the claim, which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question as new claims). That is, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). Low Back Disability In a September 2012 Board decision, the Veteran was denied entitlement to service connection for a low back disability as the Board found that the Veteran's lumbar spine disorder was not related to his period of active service. The Veteran did not appeal that decision. In connection with the current claims, the AOJ reopened the claim for service connection for a lumbar spine disorder based in part on new treatment records and lay statements, as well as a January 2021 VA examination related to the Veteran's lumbar spine disorder. The Board also finds that new and material evidence has been presented and will reopen the claim. Justus v. Principi, supra. REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. Service Connection Lumbar Spine Disorder At a January 2021 VA examination, the examiner diagnosed degenerative arthritis of the lumbar spine. In a corresponding February 2021 opinion, the examiner opined that it was less likely than not related to active service. In support of this conclusion, the examiner commented that the Veteran's lumbar spine degenerative disc disease was diagnosed in 2000 and that it was no caused by active military service. The Board finds that the February 2021 opinion is inadequate to adjudicate the issues. In this regard, the examiner did not provide any supporting rationale explaining why the Veteran's current lumbar spine disorder is not related to service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Additionally, the Board notes that the Veteran submitted a September 2015 private medical opinion in support of his claim. In the medical opinion report, the private provided commented that the Veteran's chronic lower back and sciatic pain was related to his military service. However, the provider provided no supporting rationale for the opinion that the Veteran's had a lumbar spine disorder that was related to his military service. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). Therefore, the Board finds that a new VA etiology opinion is warranted to address the nature and etiology of the Veteran's lumbar spine disorder. Bilateral Hearing Loss In a February 2020 VA etiology opinion, the examiner opined that the Veteran's diagnosed bilateral hearing loss was less likely than not caused by or a result of an in-service event. The Board finds that the February 2020 VA opinion report is inadequate to decide the claim. In this regard, the examiner heavily based the negative opinion on the fact that the Veteran had normal hearing until 2003. That alone is not a sufficient basis for a negative conclusion. The Board notes that the absence of in-service evidence of a hearing disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service as opposed to intercurrent causes. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As the opinion is not adequate, it cannot serve as the basis of denials of entitlement to service connection. Therefore, the Board finds that a remand is necessary to obtain an adequate medical opinion is warranted regarding the nature and etiology of the Veteran's bilateral hearing loss. Gastrointestinal Disorder At a July 2020 VA examination, the examiner diagnosed chronic diarrhea and opined that it was less likely than not related to active service. In support of this conclusion, the examiner commented that the Veteran's service treatment records showed a couple episodes of diarrhea that were self-limited and that there was no mention of diarrhea during several period physicals. The Board finds that the July 2020 opinion is inadequate to adjudicate the issue. In this regard, the examiner did not provide adequate rationale explaining why the Veteran's current gastrointestinal disorder is not related to service. Nieves-Rodriguez v. Peake, supra. Moreover, the examiner did not address the Veteran's assertion his current gastrointestinal disorder began during service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran's reports of in-service injury and instead relied on the absence of evidence in a Veteran's service treatment records to provide a negative opinion). On remand, an addendum etiology opinion should be obtained. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of any currently present lumbar spine disorder. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present lumbar spine disorder, to include arthritis, had its onset during his active service, or is otherwise etiologically related to such service. The examiner must consider the Veteran's lay statements regarding the onset and continuity of his symptoms. The examiner should also address the September 2015 private opinion report. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Following the receipt of outstanding records, obtain an etiology opinion from an audiologist, or other qualified medical examiner, to determine the nature and etiology of the Veteran's bilateral hearing loss. The need for an audiological examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's bilateral hearing loss had its onset during his active service, or is otherwise etiologically related to such service, to include whether any injury due to loud noise exposure experienced therein contributed to his bilateral hearing loss. The examiner must specifically address the Veteran's contention that his hearing loss had a delayed onset following service. The examiner must consider the Veteran's statements regarding the onset and continuity of his symptoms, to include his MOS as infantryman. The examiner should also address the study by the National Institute on Deafness and Other Communication Disorders cited in his representative's brief, which addresses delayed onset hearing loss. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of any currently present gastrointestinal disorder. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present gastrointestinal disorder, to include chronic diarrhea, irritable bowel syndrome, and gastroenteritis, had its onset during his active service, or is otherwise etiologically related to such service. The examiner must consider the Veteran's lay statements regarding the onset and continuity of his symptoms. The examiner should also address service treatment records showing complaints of diarrhea. (Continued on the next page) A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher O'Donnell, 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.