Citation Nr: 21015399 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-61 463 DATE: March 17, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right shoulder disability is remanded Entitlement to service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Appellant served on active duty for training in the United States Army from October 2001 to November 2001 and from April 2008 to May 2008, with additional periods of service in the Army National Guard. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Department of Appellants Affairs (VA). In December 2020, the Appellant testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the Appellant’s electronic claims file. The Board notes that the Veteran also testified concerning the cervical spine. A review of the record reflects, however, that this condition has not been perfected on appeal. Specifically, at the time the Veteran filed his claim in 2014, he filed for the left wrist, lower back, hearing loss, tinnitus and right shoulder. Even under a liberal reading, these disabilities do not include the cervical spine. Throughout the appeal, the Veteran continued to reference the lower back and the right shoulder without indicating the cervical spine until the hearing. Since this issue has not been adjudicated, it is REFERRED to the RO for appropriate action. 1. Service Connection for Lumbar Strain is Remanded. The Veteran contends that service connection is warranted for a back disability. Specifically, the Appellant contends the current back disability was incurred in April 2012 after performing extended driving duties. An April 2012 emergency treatment note indicates the Appellant experienced low back pain after driving 9 hours. Training orders support that the Appellant was on ACDUTRA at the time of the injury. To date, the Appellant has not been provided a VA examination to determine the nature and etiology of the back disability, as such, a remand is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). 2. Service Connection for Right Shoulder is Remanded. The Veteran contends that service connection is warranted for a right shoulder disability. Specifically, the Appellant testified that the current shoulder disability was related to job duties and general wear and tear. A statement from K.L., M.D. indicated the Veteran reported multiple accidents on military duty including two motor vehicle collisions and a bomb explosion in the vicinity. Dr. L. opined that the facts presented by the Veteran were consistent with the record of service. No rationale was provided. To date, the Appellant has not been provided a VA examination to determine the nature and etiology of the back disability, as such, a remand is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). 3. Service Connection for Right Ear Hearing Loss is Remanded. The Appellant contends that service connection is warranted for right ear hearing loss. The Board notes, that the Appellant is already service connected for left ear hearing loss. However, during a July 2014 VA examination, the audiometric testing did not reveal a hearing loss disability for VA purposes. However, during the December 2020 Board hearing, the Appellant indicated that the hearing in his right ear has worsened. While the passage of time alone does not warrant a new examination, given the Appellant's complaints of worsening of hearing in the right ear, the Board finds that a current examination is necessary. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Associate any VA treatment records since February 2016 with the electronic claims file. 2. After completion of the development above. Schedule the Appellant for an orthopedic examination to ascertain the nature and likely etiology of any back disabilities. The entire VA record must be reviewed by the examiner in conjunction with the examination. Based on examination of the Appellant and review of the record, the examiner should provide opinions that respond to the following: Is it at least as likely as not (a 50 percent or greater probability) that any currently present back disabilities are etiologically related to or aggravated during a period of active service or period of ACDUTRA or INACDUTRA? The examiner must discuss the April 2012 back injury. A rationale should be given for all opinions and conclusions rendered. 4. After completion of the development above. Schedule the Appellant for an orthopedic examination to ascertain the nature and likely etiology of any right shoulder disabilities. The entire VA record must be reviewed by the examiner in conjunction with the examination. Based on examination of the Appellant and review of the record, the examiner should provide opinions that respond to the following: Is it at least as likely as not (a 50 percent or greater probability) that any currently present right shoulder disabilities are etiologically related to or aggravated during a period of active service or period of ACDUTRA or INACDUTRA? The examiner must discuss the lay statements and statement of K.L. A rationale should be given for all opinions and conclusions rendered. 4. Schedule the Appellant for a VA audiology examination to determine the current etiology of any right ear hearing loss. The claims file and a copy of this remand should be made available to the examiner for review in conjunction with the examination. All appropriate tests and studies should be accomplished. A complete rationale must be provided for any opinions expressed. The VA examiner should offer the following opinion: a) Is it at least as likely as not (50 percent or greater probability) that the Appellant's right ear hearing loss had onset in service or is otherwise related to his periods of ACDUTRA, to include noise exposure? In rendering the opinions requested above, the VA examiner should assume that the Appellant was exposed to loud noises in service and comment on the Appellant’s reported noise exposure. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, 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.