Citation Nr: 21021200 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-44 250 DATE: April 12, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a low back disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left toe disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1981 to April 1987, and February 2003 to November 2004. He had additional Reserve service, including a period of active duty for training (ACDUTRA) from June 1996 to January 1997. In January 2020, he testified at a hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. This case was most recently before the Board in July 2020 when the above-noted issues were remanded for additional development. There has not been substantial compliance with the remand directives and the claims must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran has testified that his doctors have told him that his hearing loss is due to military noise exposure. The Board last remanded this matter to obtain an adequate medical opinion. In December 2020, he underwent a VA examination where he was diagnosed with left ear hearing loss. However, the examiner’s negative nexus opinion is inadequate. In support of their conclusion, the examiner stated that the Veteran “is showing signs of a middle ear pathology which would not be associated with acoustic trauma caused by noise exposure.” The examination report fails to detail the nature of this middle ear pathology or explain why it weighed against a finding that the Veteran’s hearing loss was due to in-service acoustic trauma. Remand is therefore needed to obtain a more thoroughly reasoned addendum opinion. 2. Entitlement to service connection for a low back disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. 4. Entitlement to service connection for a left toe disability is remanded. The Board last remanded the claims to obtain adequate medical opinions. In January 2021, he underwent VA examinations where he was diagnosed with degenerative arthritis of the spine, a left knee ACL repair, and hammer toe of the left foot. The examiner, a nurse practitioner, provided nearly identical negative opinions for each of the above three claims, basing his conclusions on the absence of in-service treatment records documenting the respective conditions without addressing the specific questions presented by the July 2020 Board remand. An opinion based on the absence of treatment records without consideration of a Veteran’s competent reports is inadequate. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Remand is therefore needed to obtain more thoroughly reasoned addendum opinions that answer the questions in the July 2020 Board remand The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the likely etiology of the Veteran’s diagnosed left ear hearing loss. Copies of all pertinent records must be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. Based on a review of the record, the examiner must opinion whether it is at least as likely as not that the diagnosed hearing loss is related to an in-service injury, event, or disease, including noise exposure from working near aircraft engines, and near diesel engines and generators in engine rooms. A complete rationale must be provided for any opinion offered. Obtain an addendum opinion from an appropriate clinician regarding the likely etiology of the Veteran’s diagnosed back disability. Copies of all pertinent records must be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. Based on a review of the record, the examiner must answer the following questions: (a) Did the Veteran’s back disability clearly and unmistakably (i.e., it is undebatable) exist prior to his active service? (b) If the answer to (a) is yes, does the evidence clearly and unmistakably show (i.e., it is undebatable) that the back disability was not aggravated by service or that any increase in disability was due to the natural progression of the condition? Please identify such evidence with specificity. (c) If the answer to either (a) or (b) is no, is it at least as likely as not that the Veteran’s back disability had its onset in or is otherwise related to service? In answering these questions, the examiner must specifically consider the following: (i) the 2002 private treatment record noting a complaint of back pain; (ii) the June 2003 service treatment record showing a complaint of back pain, and; (iii) the state compensation claim where the Veteran identifies an October 2015 work-related injury. (d) Is it at least as likely as not that the Veteran’s back disability was (i) caused by or (ii) aggravated by (defined as any increase in disability) a service-connected disability? A complete rationale must be provided for any opinion offered. 2. Obtain an addendum opinion from an appropriate clinician regarding the likely etiology of the Veteran’s diagnosed left knee and left toe disabilities. Copies of all pertinent records must be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. The examiner must answer the following questions: (a) Is it at least as likely as not that any diagnosed left knee disability had its onset in or is otherwise related to an in-service injury, event, or disease? The examiner must address the significance of the Veteran’s report of a 2004 injury and attempt to obtain treatment, as well as his testimony that he also injured the left knee in the early 1980s and sought treatment at the sick bay hospital in Subic Bay where he was told to ice and rest the knee, that he continued to treat the knee with ice and rest for the rest of his service, and that the condition continued since active duty. (b) Is it at least as likely as not that any diagnosed left toe disability had its onset in or is otherwise related to an in-service injury, event, or disease? The examiner must address the significance of Veteran’s report of in-service symptoms, as well as his testimony that he saw a medical doctor on sick call for his left hammer toe and it continued from separation until it was repaired. A complete rationale must be provided for any opinion offered. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, 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.