Citation Nr: 21010553 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-36 975 DATE: February 25, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1963 until June 1967, August 1972 to August 1988. His awards and decorations include the Vietnam Service Medal with two Bronze Stars, Battle “E” Ribbon, and Navy Achievement Medal. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a February 2015 Department of Veterans Affairs (VA) regional office (RO) rating decision. In July 2019, the Board remanded these claims for further development, namely, to obtain the Veteran’s military personnel records and a VA examination for the Veteran’s bilateral hearing loss. 1. Entitlement to service connection for a low back disability is remanded. The Veteran’s VA treatment records show that he is currently diagnosed with a lumbar sprain and degeneration of lumbar or lumbosacral intervertebral disc. In response to the June 2019 Board remand, the Veteran’s service treatment records were obtained. Therein, April 1988 service treatment records indicate that the Veteran was seen for low back pain. Specifically, the records suggest that the Veteran had a diagnosis of “arthritis/inflammation.” There is no x-ray in the file that confirms an arthritic diagnosis in service. The Board notes that he Veteran’s DD 214 indicates that he was involved with operations against guerrilla forces as a field artillery operator’s assistant while serving in Vietnam in 1967. See 38 U.S.C. § 1154. Additionally, in an August 2016 lay statement, the Veteran stated that he injured his back when he fell down a stairwell while serving aboard the USS Tattnall in 1982. The Veteran has not yet had a VA examination to determine whether his low back disability is related to his military service. Accordingly, a remand is required to obtain a VA examination and opinion addressing the etiology of the Veteran’s low back disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a compensable rating for bilateral hearing loss is remanded. The Veteran participated in a December 2019 VA examination regarding the severity of his bilateral hearing loss. He also submitted numerous relevant medical treatment records subsequent to the July 2020 SSOC. However, in the February 2021 Brief, the Veteran’s representative pointed out that the July 2020 SSOC failed to consider the December 2019 VA examination, did not waive AOJ review of this evidence, and raised the argument of referral to the Director of Compensation and Pension Service for entitlement to an extraschedular rating for dizziness associated with bilateral hearing loss. The Veteran has the right to initial AOJ consideration of this new evidence. 38 C.F.R. §§ 19.31, 19.37; Disabled Am. Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003). Thus, remand is warranted for the AOJ to consider this evidence, along with other evidence associated with the claims file, and readjudicate the appeal, to include whether entitlement to referral for an extraschedular rating is warranted. The matters are REMANDED for the following action: 1. Undertake appropriate efforts to obtain any relevant outstanding VA or private medical records and associate them with the claims file. 2. Afford the Veteran a VA examination (or telehealth interview, review of the record, or similar, if an in-person examination is not feasible) to determine the nature and etiology of the Veteran’s low back disability.  The claims folder must be reviewed in conjunction with the examination and opinion.  The VA examiner must provide a well-reasoned opinion as to whether it is at least as likely as not that any currently diagnosed low back disability, to include a back sprain or degeneration of lumbar or lumbosacral intervertebral disc, began in service, within one year of service separation, or is otherwise etiologically related to the Veteran’s period of military service. The examiner should specifically take into consideration and discuss the Veteran’s lay statements, his MOS as a field artillery operator’s assistant with operations against guerrilla forces in 1967, and the April 1988 service treatment records note that the Veteran was seen for low back pain and had a possible diagnosis of “arthritis/inflammation.” A full and complete rationale for all opinions is requested. 3. Refer the matter of entitlement to a higher disability rating for a bilateral hearing loss disability, on an extraschedular basis, to VA's Director of Compensation Services for consideration of an extraschedular rating under 38 C.F.R. § 3.321 (b)(1). 5. Upon completion of the above, readjudicate the claims with consideration of all evidence of record and issue the Veteran and his representative a supplemental statement of the case. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, 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.