Citation Nr: 21008475 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-20 504 DATE: February 17, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for radiculopathy of the left lower extremity, to include as secondary to a low back condition is remanded. Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to a low back condition is remanded. FINDING OF FACT The Veteran’s bilateral hearing impairment is not a disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from February 1975 to June 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. During the hearing, the undersigned agreed to hold the record open for a period of 30 days to allow for the submission of additional evidence. That time period has now lapsed, and no additional evidence has been received. Entitlement to service connection for bilateral hearing loss. The Veteran seeks service connection for bilateral hearing loss. For the reasons that follow, the Board finds that service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases, to include sensorineural hearing loss, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). As indicated above, a threshold requirement for service connection is that the Veteran has a current disability. In the case of impaired hearing, the regulations provide that not all impaired hearing is considered a disability for VA purposes. 38 C.F.R. § 3.385. Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The Veteran underwent a VA fee-based examination in January 2016. Pure tone thresholds, in decibels, were as follows: HERTZ CNC % 500 1000 2000 3000 4000 RIGHT 20 20 20 20 25 96 LEFT 15 15 15 20 30 96 Based on the above table, the objective findings on audiometric testing do not meet the criteria of § 3.385. There are no other audiological evaluations of record during the relevant time period. Accordingly, the Veteran’s bilateral hearing impairment is not considered a disability for VA purposes. The Board acknowledges that at the September 2020 hearing, the Veteran’s representative generally contended that the January 2016 hearing examination was inadequate but did not specifically explain why the examination was inadequate. The Board has reviewed the VA examination report and finds no reason to find the examination inadequate. Specifically, the audiological examination was conducted in the manner required under VA regulations. See 38 C.F.R. § 4.85(a). As the Veteran’s current bilateral hearing impairment is not considered a disability for VA purposes, service connection is not warranted. There is no doubt to be resolved; the claim is denied. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability. The Veteran contends that his current low back condition is related to his military service. The Board finds that additional development is necessary prior to adjudication. First, there may be outstanding, relevant private treatment records. A November 2015 private treatment record notes that the Veteran received phsycial therapy as well as treatment from chiropractors for his low back condition. See also September 2020 hearing transcript (reporting physical therapy treatment). However, no records from a chiropractor or physical therapist are of record. Accordingly, a remand is required to allow VA to obtain authorization and request any outstanding records. Additionally, at the September 2020 hearing, the Veteran reported receiving intermittent treatment for his low back from Dr. E.L. While records from Dr. E.L. are of record, the most recent records from from 2015. As such, on remand, any updated records from this provider also should be obtained. Additionally, the Board finds that an addendum opinion is required. The Veteran underwent a VA fee-based examination in February 2017 at which time an etiology opinion was obtained. At the time of the examination, the Veteran had only contended that his current low back condition was due to a back injury he sustained in service while weightlifting. However, at the September 2020 hearing, the Veteran also contended that his current low back condition may be related to a neck injury he suffered at the same time he injured his back while weightlifting. At the hearing, the Veteran contended that medical literature supported the theory that an injury to cervical vertebrae could lead to low back myofacial pain and/or a low back condition, although the Veteran has not submitted the referenced literature. The Veteran also contended that his neck injury in service caused him to overcompensate which caused his current low back condition. While service connection for a cervical spine disability is not in effect, the service treatment records do show that in February 1977 the Veteran complained of neck pain and received treatment for a cervical strain. In light of the foregoing, the Board finds that an addendum opinion should be obtained. 2. Entitlement to service connection for radiculopathy of the bilateral lower extremities. The February 2017 VA fee-based examination report indicates that this disability is related to the Veteran’s low back condition. Thus, if service connection is granted for the low back, then service connection will also be warranted for bilateral lower extremity radiculopathy based on a secondary theory of entitlement. See 38 C.F.R. § 3.310. Accordingly, the claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Adjudication of the claims of entitlement to service connection for right and left lower extremity radiculopathy is deferred. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the physical therapist(s) and chiropractors that have treated his low back condition as well as Dr. E.L. Make two requests for the authorized records from the identified providers, unless it is clear after the first request that a second request would be futile. 2. Return the Veteran’s claims file to the VA contract examiner who conducted the February 2017 VA examination and obtain an addendum medical opinion concerning the nature and etiology of the Veteran’s low back condition. If the examiner who rendered the February 2017 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with authoring the opinion. The examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s low back condition was caused by, or is otherwise related to, the February 1977 neck injury in service. A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran’s lay statements. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.