Citation Nr: 21022866 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 10-22 635 DATE: April 19, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a bilateral knee disorder is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2004 to July 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in May 2017, at which time it was remanded for further development, as discussed below. The Board finds that the remand directives were not substantially complied with and thus another remand is warranted. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. A May 2017 Board decision remanded the claims of service connection for bilateral hearing loss and tinnitus. The Agency of Original Jurisdiction (AOJ) was directed to schedule the Veteran for a VA examination to determine etiology of any bilateral hearing loss and tinnitus disabilities. 05/05/2017, Remand BVA. The record indicates that the VA examination was initially rescheduled due to the illness of the Veteran. 10/12/2018, Email Correspondence; 12/08/2018, Deferred Rating. The record also indicates that the Veteran did not appear for a subsequent VA examination. 01/14/2019, Exam Request. However, the treatment records reveal that, at the time of the scheduled VA examination, the Veteran was at high risk for suicide and had unstable housing. 02/14/2019, CAPRI. The record is devoid of evidence that the Veteran actually received notice of this second attempt to schedule the VA examination. Upon review, the record suggests that the Veteran was not sufficiently afforded an opportunity for a VA examination to determine etiology of any bilateral hearing loss and tinnitus disabilities. As such, the Board finds that the remand directives were not substantially complied with and, therefore, another remand is warranted. Stegall, 11 Vet. App. at 271. 3. Entitlement to service connection for a bilateral knee disorder is remanded. A May 2017 Board decision remanded the claim of service connection for a bilateral knee disorder and directed the AOJ to schedule the Veteran for a VA examination to determine etiology of any bilateral knee disability. 05/05/2017, Remand BVA. A September 2019 VA examination noted diagnoses of several left knee conditions, the onset of which occurred due to the Veteran having been struck by a vehicle in 2015. The Veteran was in a coma for four months due to this incident. The examiner opined that the Veteran’s knee conditions are less likely than not related to his period of active service. The rationale was based on the 2015 motor vehicle accident having caused the Veteran’s more recent knee injuries. 10/14/2019, C&P Exam; 10/14/2019, C&P Exam (medical opinion). However, the treatment records reveal that the Veteran was diagnosed with bilateral patellofemoral disease in September 2008. 10/07/2008, Medical Treatment Record – Government Facility, pages 9-10. This diagnosis was made shortly before the Veteran filed his claim for service connection in October 2008. 10/01/2008, VA 21-526 Veteran’s Application. As such, the Board finds that the remand directives were not substantially complied with and, therefore, another remand is warranted. Stegall, 11 Vet. App. at 271. Specifically, the September 2019 VA examination did not consider the Veteran’s documented diagnosis of a bilateral knee condition during the appeals period and relied on incorrect premise in reaching the medical opinion. Based on the foregoing, the Board finds the September 2019 VA examination to be incomplete and a new examination is needed before a merits adjudication. 4. Entitlement to service connection for a back disorder is remanded A May 2017 Board decision remanded the claim of service connection for a back disorder and directed the AOJ to afford the Veteran an opportunity to identify relevant treatment records, to include a specific request for any chiropractic treatment. After the completion of the aforementioned development, the AOJ was directed to schedule the Veteran for a VA examination to determine etiology of any back disability. 05/05/2017, Remand BVA. Thereafter, the AOJ made several attempts to contact the Veteran for authorization to obtain relevant private treatment records. These attempts were frustrated by the Veteran’s housing insecurity and inpatient psychiatric treatment. 10/16/2017, Returned Mail; 03/13/2018, VA 21-4138; 06/29/2018, VA 21-0820. Eventually, the Veteran was contacted by telephone, wherein the Veteran reported that he had seen a chiropractor to treat his back and needed to find paperwork somewhere around his house to identify the name of the provider. 09/21/2018, VA 21-0820. The AOJ subsequently provided the necessary authorization forms to obtain private treatment record but did not include a specific request for chiropractic treatment records. 09/24/2018, Subsequent Development Letter. And, in October 2019, the AOJ again requested that the Veteran provide the necessary authorizations to obtain private treatment record, which included a specific request for chiropractic treatment records. 10/25/2019, Subsequent Development Letter. The record is devoid of evidence that the Veteran responded to any requests for authorization to obtain records. An October 2019 VA examination indicated that the Veteran did not complain of any back condition during the in-person examination. The VA examiner opined that the Veteran’s back condition is less likely than not related to his period of active service. The rationale was based on the Veteran having not complained of a back condition. 10/14/2019, C&P Exam; 10/14/2019, C&P Exam (medical opinion). However, the treatment records reveal that the Veteran reported having sustained a lower back injury due to an improvised explosive device (IED) blast during active service, and that the Veteran complained of lower and upper back pain in September 2008. 10/07/2008, Medical Treatment Record – Government Facility, pages 20-22. This complaint of back pain was made shortly before the Veteran filed his claim for service connection in October 2008. 10/01/2008, VA 21-526 Veteran’s Application. As such, the Board finds that the remand directives were not substantially complied with and, therefore, another remand is warranted. Stegall, 11 Vet. App. at 271. Specifically, the September 2019 VA examination did not consider the Veteran’s documented complaints of back pain during the appeals period and relied on incorrect premise in reaching the medical opinion. Based on the foregoing, the Board finds the September 2019 VA examination to be incomplete and a new examination is needed before a merits adjudication. 5. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. A May 2017 Board decision remanded the claim of service connection for TBI and directed the AOJ to schedule the Veteran for a VA examination to determine etiology of any TBI condition. 05/05/2017, Remand BVA. A September 2019 VA examination noted a diagnosis of TBI, the onset of which occurred due to the Veteran having been struck by a vehicle in 2015. The examiner opined that the Veteran’s TBI condition less likely than not related to his period of active service. The rationale was based on the 2015 motor vehicle accident having caused the Veteran’s more recent TBI condition. 10/14/2019, C&P Exam; 10/14/2019, C&P Exam (medical opinion). Separate VA examinations conducted in September 2019 also noted diagnoses of unspecified convulsions and posttraumatic headaches. The VA examiner remarked that the onset of the convulsions occurred in 2017 and may be related to the Veteran’s TBI or substance abuse. The VA examiner also remarked that the posttraumatic headaches may be related to the Veteran’s in-service injury from an IED blast. 10/14/2019, C&P Exam (epilepsy); 10/14/2019, C&P Exam (headaches). However, the treatment records reveal that the Veteran had a positive screen for TBI in September 2008, which was noted to have been related to his in-service IED blast injury. 10/07/2008, Medical Treatment Record – Government Facility, page 19. This positive screen was made shortly before the Veteran filed his claim for service connection in October 2008. 10/01/2008, VA 21-526 Veteran’s Application. As such, the Board finds that the remand directives were not substantially complied with and, therefore, another remand is warranted. Stegall, 11 Vet. App. at 271. Specifically, the September 2019 VA examination did not consider the Veteran’s documented positive screen for TBI during the appeals period and relied on incorrect premise in reaching the medical opinion. Likewise, the VA examiner did not provide an opinion as to whether the Veteran’s headaches and convulsions are related to his TBI or otherwise related to his period of active service. Based on the foregoing, the Board finds the September 2019 VA examination to be incomplete and a new examination is needed before a merits adjudication. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. A specific request should be made for any records relating the Veteran’s claimed back injury, specifically any chiropractic treatment. 2. After completing directive #1, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any bilateral hearing loss and tinnitus conditions. The examiner is asked the review the claims file to become familiar with the relevant medical history related to the Veteran’s bilateral hearing loss and tinnitus, to include obtaining a full history from the Veteran. The examiner is to address: (a.) For any current diagnosis of hearing loss, is it at least as likely as not (probability of 50 percent or more) related to an event, disease, or injury in service? (b.) If the answer to (a) is no, is it at least as likely as not (probability of 50 percent or more) that any current diagnosis of hearing loss (i) manifested to a compensable degree within one year of July 26, 2007, or (ii) was noted during service with continuity of the same symptomatology since service? (c.) For any current diagnosis of tinnitus, is it at least as likely as not (probability of 50 percent or more) related to an event, disease, or injury in service? (d.) If the answer to (c) is no, is it at least as likely as not (probability of 50 percent or more) that any current diagnosis of tinnitus (i) manifested to a compensable degree within one year of July 26, 2007, or (ii) was noted during service with continuity of the same symptomatology since service? A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, 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 completing directive #1, obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s bilateral knee disorder. An in-person examination is not required unless deemed necessary by the clinician. The clinician is to review the virtual file, including a copy of this Remand. The clinician is to provide an opinion as to whether any diagnosis of a bilateral knee disorder during the appeals period (October 1, 2008, to the present) is at least as likely as not (probability of 50 percent or more) related to an in-service injury, event, or disease. It is noted that the Veteran was diagnosed with bilateral patellofemoral disease in September 2008, which predates the 2015 automobile accident. See 10/07/2008, Medical Treatment Record – Government Facility, pages 9-10. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, 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). 4. After completing directive #1, obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s back disorder. An in-person examination is not required unless deemed necessary by the clinician. The clinician is to review the virtual file, including a copy of this Remand. The clinician is to provide an opinion as to whether any diagnosis of a back during the appeals period (October 1, 2008, to the present) is at least as likely as not (probability of 50 percent or more) related to an in-service injury, event, or disease. The clinician should consider treatment records showing that the Veteran reported having sustained a lower back injury due to an improvised explosive device (IED) blast during active service, and that the Veteran complained of lower and upper back pain in September 2008. See 10/07/2008, Medical Treatment Record – Government Facility, pages 20-22. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, 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). After completing directive #1, obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s TBI. An in-person examination is not required unless deemed necessary by the clinician. The clinician is to review the virtual file, including a copy of this Remand. The clinician is asked to provide an opinion on the following questions: (a.) Whether any diagnosis of a TBI condition during the appeals period (October 1, 2008, to the present) is at least as likely as not (probability of 50 percent or more) related to an in-service injury, event, or disease. (b.) Whether the Veteran’s headaches and convulsions are at least as likely as not (probability of 50 percent or more) related to an in-service injury, event, or disease. The clinician should consider treatment records showing that the Veteran had a positive screen for TBI in September 2008, which was noted to have been related to his in-service IED blast injury. See 10/07/2008, Medical Treatment Record – Government Facility, page 19. (c.) Whether the Veteran’s headaches and convulsions were at least as likely as not (probability of 50 percent or more) caused by his TBI. (d.) Whether it is at least as likely as not (probability of 50 percent or more) that the Veteran’s headaches and convulsions have been aggravated by his TBI. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, 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). Jeffrey A. Gelber Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.