Citation Nr: 21005851 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-18 662 DATE: February 2, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. An initial rating in excess of 10 percent for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1989 to October 1996. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The undersigned left the record open for 60 days. See 7/22/2020 Hearing Transcript. 1. Service connection for bilateral hearing loss. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran contends service connection for bilateral hearing loss. Specifically, the Veteran asserts military noise exposure to loud noises, such as jet engines, weapons, gas powered equipment, and sirens that damaged his hearing. See 5/17/2012 VA Examination, at page 5; see also 3/19/2013 NOD. Additionally, the Veteran testified that he was provided with ear plugs, but they did not work well. Further, the Veteran testified that most of the time he was unable to wear ear plugs due to the nature of his tasks, such as fighting fires and shooting weapons. In addition, the Veteran testified that in Dessert Storm, their tents were right in the flight line of aircrafts and they never knew when they were going to fire up. See 7/22/2020 Hearing Transcript, at pages 6, 7, and 10. After review of the record, a remand is required in this case to ensure that VA’s responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Service treatment records showed that the Veteran had repeated exposure to loud music, hazardous noise, firearms, fire alarms, flight line, farm equipment, chain saws, and power tools. Additionally, the service treatment records showed that the Veteran was on a hearing conservation program because one day the exposure level exceeded the 84 decibel criteria. See 10/18/2010 STR – Medical, at pages 8 and 22. During the May 2012 VA examination, the Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner stated that she could not provide a medical opinion regarding the etiology of the Veteran’s hearing loss disability without resorting to speculation because she did not have the Veteran’s records available for review. See 5/17/2012 VA Examination. The Board finds this opinion inadequate. The reviewing clinician did not base her conclusion on the full claims record, since as mentioned above, the examiner did not have the Veteran’s record available for review. As such, on remand, the RO should obtain a VA examination to determine the nature and etiology of the Veteran’s bilateral hearing loss disability. Based on the evidence of record, the Board finds that on remand, the Agency of Original Jurisdiction (AOJ) should take appropriate action to schedule a VA audiological examination. 2. An initial rating in excess of 10 percent for a lumbar spine disability is remanded. The Veteran seeks an increased rating for his service-connected disabilities. See 3/19/2013 NOD. Specifically, the Veteran contends that his service-connected disability has worsened. See 7/22/2020 Hearing Transcript, at page 2; see also 8/6/2019 Appellate Brief, at page 1. After review of the record, a remand is required in this case to ensure that VA’s responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The AOJ afforded the Veteran a VA examination in November 2015. However, the examination report is not adequate for rating purposes. First, evidence recently associated with the claims file suggest his service-connected disability has worsened since his most recent VA examination. Specifically, a private letter from S.W., D.C., stated that the Veteran’s back disability is getting worse. See 12/9/2015 Third Party Correspondence. Additionally, the Veteran testified that doing yardwork causes flare-ups, his back swells, and he feels numbness. Further, sitting for long periods of time causes flare-ups, stiffness, and aching and numbness down to his knees. In addition, on a couple of occasions his back has “given out.” See 7/22/2020 Hearing Transcript, at pages 2, 3, and 4. A veteran is entitled to a new VA examination where there is evidence that the Veteran’s disabilities have worsened since the last examination. 38 C.F.R. § 3.327(a). As the evidence suggests that the Veteran’s service-connected disability has worsened since his last VA examination in November 2015, the Board finds that the evidence of record is insufficient to decide the claim and the Veteran should have been provided new VA examination. The Veteran’s representative also makes this argument. See 8/6/2019 Appellate Brief. As such, the Board finds that a remand is necessary to afford the Veteran a new VA orthopedic examination to adequately assess the severity of his service-connected disability. These matters are REMANDED for the following actions: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. After completion of step # 1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s bilateral hearing loss disability. The clinician is to review the virtual file, including a copy of this Remand. After a review of the claims file, the examiner must address: Whether it is at least as likely as not (probability of 50 percent or more), that the Veteran’s current bilateral hearing loss, in whole or part, had its onset in service. **The examiner must address the Veteran’s contentions that he had military noise exposure to loud noises, such as jet engines, weapons, gas powered equipment, and sirens that damaged his hearing. See 5/17/2012 VA Examination, at page 5; see also 3/19/2013 NOD.** Additionally, the Veteran asserts that that most of the time he was unable to wear ear plugs due to the nature of his tasks, such as fighting fires and shooting weapons. Further, the Veteran asserts that in Dessert Storm, their tents were right in the flight line of aircrafts and they never knew when they were going to fire up. See 7/22/2020 Hearing Transcript, at pages 6, 7, and 10. A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completion of step # 1, schedule the Veteran for an examination with an appropriate specialist concerning his lumbar spine disability. The clinician is to review the virtual file, including a copy of this Remand. The examiner is to provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to his lumbar spine disability and discuss its effect on any occupational functioning and activities of daily living. A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, 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.