Citation Nr: 21022950 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-40 719 DATE: April 19, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for coronary artery disease (CAD), and in excess of 30 percent from November 14, 2018 is remanded. Entitlement to service connection for a back disability, including degenerative disc disease is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran had active duty service from January 1967 to December 1968. This matter is on appeal before the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in September 2014. This case was most recently previously before the Board in November 2020, at which time it was remanded to the AOJ for additional development. Unfortunately, the Board finds that the AOJ did not substantially comply with remand directives, making another remand necessary. Stegall v. West, 11 Vet. App. (1998). 1. Entitlement to an initial rating in excess of 10 percent for coronary artery disease (CAD), and in excess of 30 percent from November 14, 2018 is remanded. The November 2020 remand required the AOJ to obtain a retrospective medical opinion regarding the Veteran’s symptoms as they existed in 2018 and 2019. However, the February 2021 VA examination provided no such opinion. The examiner was also to address the Veteran’s private records, and indicate whether aortic dilatation is medically the same as cardiac dilatation as used within the diagnostic code, which was not done. Therefore, another remand is required. 2. Entitlement to service connection for a back disability, including degenerative disc disease is remanded. The Veteran was afforded a VA examination for his back claim in January 2021. The examiner diagnosed the Veteran with degenerative arthritis of the spine. In providing a negative nexus opinion, the examiner wrote, “[t]he Veteran[‘s] diagnosis of (a) Back Disability was less likely than not…incurred in or caused by riding in a bumpy truck or jumping off a truck with heavy gear during service. There is a lack of chronicity of care for a back disability from time of onset in service to current time.” The Board finds this rationale inadequate to decide the claim. First, it is based on a lack of documented treatment or care, and does not explain relevant medical principles. The Board noted in prior remands that a complete explanation must not be based solely on lack of documentation. Second, the rationale does not account for the Veteran’s competent reports of back pain or strain during service. The Veteran testified that he strained his back in Vietnam, but had to ignore it because he was unable to seek treatment. Third, the examiner did not address the Veteran’s testimony that he never hurt his back as a civilian, and found it suspicious that he started having problems around 2008. Fourth, as indicated in the November 2020 remand, the examiner did not specifically address all diagnoses in the Veteran’s medical records. For these reasons, a supplemental opinion must be obtained. 3. Entitlement to service connection for bilateral hearing loss is remanded. 4. Entitlement to service connection for tinnitus is remanded. The Board’s October 2019 and November 2020 remands indicated that, with regard to the Veteran’s claims for tinnitus and hearing loss, a VA examination report must address the articles submitted in June 2019. The resulting December 2019 and February 2021 opinions did not. Moreover, the examinations of record do not adequately address the Veteran’s reports of onset of symptoms. The February 2021 opinion regarding tinnitus is based on the examiner’s conclusion that hearing loss is not related to service. Therefore, both opinions are inadequate. A remand is required for an examiner to address the Veteran’s testimony and the articles he submitted in June 2019. The matters are REMANDED for the following action: 1. Forward the record, including a copy of this remand, the private records received in September 2015, March 2016, and January 2020, the July 2018 Disability Benefits Questionnaire, and all the cardiology VA examinations of record, to the examiner who conducted the February 2021 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. Following review of the record, the examiner should respond to the inquiry below. If the examiner determines that he or she cannot respond to the Board’s inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an in-person examination, or by other means if an in-person examination is not feasible. If an examination is conducted, any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. Specifically, the examiner should: (a.) Review the Veteran’s private cardiology records, and the July 2018 DBQ which together show diagnoses of hypertension, CAD, heart palpitations, ascending aortic dilation, sick sinus syndrome, unstable angina, cardiomyopathy, and paroxysmal atrial fibrillation, and acknowledge having reviewed same; (b.) Determine and consider whether, at any point during the appellate period (from 2014 onward) the Veteran has or had signs and symptoms of any of the disabilities or diagnoses listed in the private records, or if any of the Veteran’s disabilities or diagnoses is or was asymptomatic; (c.) If the Veteran has or has had (from 2014 onward) another symptomatic cardiac diagnosis, whether any symptoms caused by the Veteran’s service-connected coronary artery disease are or were distinguishable from any symptoms caused by any other heart disability or condition; (d.) Determine and indicate whether any symptoms caused by the Veteran’s service-connected atrial fibrillation are distinguishable from signs and symptoms of CAD (from 2014 onward); and (e.) Indicate which diagnosed cardiac condition or diagnoses, including hypertension, CAD, heart palpitations, ascending aortic dilation, sick sinus syndrome, unstable angina, cardiomyopathy, and paroxysmal atrial fibrillation, contribute to the METs level limitation reported in the December 2019 VA examination; (f.) The examiner must specifically indicate whether the Veteran’s dilated ascending aorta qualifies as “cardiac dilatation. 2. Forward the record including a copy of this remand to the examiner who conducted the February 2021 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion regarding the Veteran’s back disabilities. Following review of the record, the examiner should respond to the inquiry below. If the examiner determines that he or she cannot respond to the Board’s inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an in-person examination, or by other means if an in-person examination is not feasible. If an examination is conducted, any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should address the following: (a.) The examiner must specifically address all diagnoses documented in the Veteran’s outpatient records, including stenosis, compression of the left L5 and right S1 nerve roots related to disc protrusion, nerve sheath tumors, spondylosis, and neurofibroma and discuss whether any is etiologically related to service. (b.) The examiner must address and discuss the Veteran’s competent reports that he strained his back in Vietnam, but had to ignore it because he was unable to seek treatment; and that he never hurt his back as a civilian, and found it suspicious that he started having problems around 2008 without any other apparent cause. (c.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any of the Veteran’s back disabilities was incurred in, caused by, or related to, active duty service, including riding in a bumpy truck or jumping off a truck with heavy gear. 3. Obtain a supplemental opinion from a qualified VA examiner regarding the etiology of the Veteran’s bilateral hearing loss and tinnitus. If the examiner determines that he or she cannot respond to the Board’s inquiries herein without examining the Veteran, then an examination must be afforded. If an in-person examination is not feasible, then the Veteran should be afforded an examination by other means. (a.) The examiner must review and address or discuss the articles in support of the Veteran’s claim submitted in June 2019, including: the article from the National Center for Rehabilitative Auditory Research; Noise Levels of Common Army Equipment; Noise and Military Service: Implications for Hearing Loss and Tinnitus; Tinnitus and Noise-Induced Hearing Loss, from the U.S. Army Center for Health Promotion and Preventative Medicine; American Speech-Language-Hearing Association: Tinnitus Evaluation and Management Considerations for Persons with Mild Traumatic Brain Injury; Hearing Research: NOISE Study; and Noise and Military Service: Implications for Hearing Loss and Tinnitus. (b.) The examiner should consider the Veteran’s reported noise exposure during service, including: jet turbine engines, small arms fire, artillery fire, bombs, reciprocal engines, rocket fire, ship engines, jack hammers, power tools, and rotary wing aircraft. (c.) The examiner must address the Veteran’s competent testimony that: he noticed hearing loss after experiencing attacks in Vietnam; he had difficulty hearing his wife when he returned from Vietnam; and his tinnitus had its onset in service. (d.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s bilateral hearing loss is etiologically related to, incurred in, or caused by the Veteran’s military service, including noise exposure. (e.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s tinnitus is etiologically related to, incurred in, or caused by the Veteran’s military service, including noise exposure. (Continued on the next page)   A complete explanation for all opinions expressed must be provided. A clearly stated rationale must not be based solely on lack of documentation or records. The reasons for any opinion must include a discussion of the relevant evidence. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, 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.