Citation Nr: 21025064 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 09-48 866 DATE: April 27, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1979 to July 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. The claims were remanded in June 2018. Of note, in September 2020, the Board erroneously sent the Veteran a letter advising her that if we did not hear from her, her appeal would remain in the Travel Board hearing queue. However, the Veteran previously elected a Board hearing and provided testimony before the undersigned Veterans Law Judge in April 2018. Thus, her appeal was not in the Travel Board hearing queue, and the September 2020 letter was issued in error. The Board sent a letter to the Veteran notifying her of the error and that she was entitled to another Board hearing, but if the Board did not hear from her within 30 days of the notice, the Board would assume she did not want an additional hearing and proceed accordingly. It has been over 30 days since the Veteran was sent the letter and no response has been received for her or her representative. As such, the Board will proceed with the adjudication of the claim. 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was afforded a VA examination in April 2019. The examiner opined that the Veteran did not have hearing loss for VA purposes and opined that the Veteran’s hearing loss was not related to service, partially based on a finding of lack of current disability. See April 2019 VA examination. The RO subsequently requested an addendum addressing the left ear as it showed hearing loss for VA purposes. See June 2019 Exam Request. In the July 2019 addendum opinion, the same VA examiner opined that the Veteran had left ear hearing loss, but that it was not related to service due to normal hearing throughout service, noise experienced in civilian life, and the lack of evidence of noise during service. See July 2019 VA examination. Additionally, the examiner relied on normal audiogram results and the lack of threshold shifts at service separation; all without considering her lay statements of record. See Id.; Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (an examination is deemed to be inadequate where the examiner relies on the absence of evidence of disability in the service treatment records, and does not account for competent lay testimony as to onset and continuity of symptoms, to provide a negative opinion). Accordingly, remand is necessary for an addendum opinion considering the Veteran’s lay statements and the possibility of delayed-onset hearing loss. Updated treatment records should also be secured, and the Board will defer any action on right ear in case any updated evidence shows right ear hearing loss for VA purposes. 2. Entitlement to service connection for a back disability is remanded. The Veteran was afforded a VA examination in May 2019. See May 2019 VA examination. The examiner opined that the Veteran’s degenerative arthritis of the spine, intervertebral disc syndrome (IVDS), muscle strain, sciatica, lumbalgia, and intersegmental dysfunction of the lumbar spine were not related to service. The examiner reasoned that there were no notations of the Veteran’s stated incidents in her service treatment records, and no hospital records to substantiate her claim, therefore, a nexus had not been established. In this regard, the Veteran specifically testified that the facility where she received her treatment for the motor vehicle accident is no longer operational. See April 2018 Board Hearing Transcript at 7. As with the hearing loss claim, the examiner failed to consider the relevant lay statements of record as directed by the Board, warranting remand for an addendum opinion. Additionally, given the Veteran’s September 2019 statement, efforts to obtain identified relevant service and post-service records should be made. The matters are REMANDED for the following action: 1. Using the Veteran’s September 2019 statement, obtain any outstanding service treatment records, to include any separately stored records from Fort Polk Hospital or Naval Air Station Chase Field during the Veteran’s active service. Please note the Veteran has indicated that she had a different last name at that time in her statement. 2. Obtain any outstanding VA treatment records, to include from the Fort Rucker Clinic after the Veteran’s separation in 1981 when she was a dependent of an active service member. Again, please note the Veteran has indicated that she had a different last name at that time in her September 2019 statement. 3. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 4. Then obtain an addendum opinion addressing the etiology of the Veteran’s left ear hearing loss with an examiner other than the April 2019 VA examiner. The claims file should be made available to and be reviewed by the examiner. (a.) Following review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s left ear hearing loss had its onset in or is otherwise related to active service, including conceded acoustic trauma sustained therein. In addressing this question, the examiner must discuss and accept as true: (1) that the Veteran sustained acoustic trauma in service, as corroborated by Sergeant E.R.K. in an April 2008 lay statement; (2) that the Veteran worked on the base supply and in the motor pool and she was around a lot of heavy equipment such as power tools (See November 2011 VA Form 21-4138; January 2012 VA Form 21-4138; April 2018 Board Hearing Transcript at 3-5); (3) that the Veteran had an incident in which she fired a weapon without hearing protection and it “kicked back” such that she heard “little voices,” which she later figured out was ringing. (See April 2018 Board Hearing Transcript at 3); (4) the Veteran’s report of hearing loss beginning in service and continuously decreasing over the years since service (see November 2011 Veteran Statement and April 2018 Board Hearing Transcript at 2-3); and (5) the January 2012 lay statement from the Veteran’s mother recalling that the Veteran did not use hearing protection and a firing range during service and noticing hearing problems post-service and determine, based on the same, whether a nexus between the Veteran’s hearing loss and service is “medically plausible,”  while considering the fact that tinnitus has been attributed to service and that “an associated hearing loss is usually present” with tinnitus. The Merck Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems. (b.) Please also opine as to whether it is at least as likely as not (50 percent probability or more) such disability is (1) proximately due to or (2) aggravated (worsened) by her service-connected tinnitus. Please note that there is no temporal requirement that the primary condition (tinnitus) be service-connected, or even diagnosed, at the time the secondary condition (hearing loss) is incurred, and reliance on this fact will render any opinion inadequate. 5. Then obtain an addendum opinion from an examiner other than the May 2019 VA examiner to determine the etiology of any current back disability. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. . The examiner is asked to address the following: For each back disability present since October 2007, even if resolved, to include but not limited to: degenerative arthritis of the spine, IVDS, muscle strain, sciatica, lumbalgia, and intersegmental dysfunction of the lumbar spine, please opine as to whether it is at least as likely as not (50 percent probability or higher) that the such disability had its onset in or is otherwise related to active service, to include as a result of conceded injuries there. In addressing this question, the examiner must discuss and accept as true: (1) the Veteran’s testimony that her back pain started in service and has progressively gotten worse over the years (See April 2018 Board Hearing Transcript at 7-8); (2) the reports of the Veteran and her mother that the Veteran sustained an injury during basic training when she slipped and fell and injured her back, and that she did not want to go to sick call when she slipped and fell on the ice because she was nervous that she would be kept in basic training longer (See April 2018 Board Hearing Transcript at 5; March 2008 and May 2009 Lay Statements); (3) the Veteran’s testimony that during active service she was involved in a motor vehicle accident while she was pregnant and that the facility where she was treated is now closed, along with her mother’s statement that she took the Veteran to Chase Field hospital following the motor vehicle accident (See April 2018 Board Hearing Transcript at 7; March 2008, May 2009 and August 2020 Lay Statement); and (4) Sergeant E. R. K.’s lay statements as a passenger in the in-service motor vehicle accident and his recollection of her developing back problems in the next few years due to physical demands of the military with continuing chronic and debilitating pain (See April 2008 and September 2020 Lay Statements) and determine, based on the same, whether a nexus between the Veteran’s back disability and service is “medically plausible,”  despite the absence of documentation. Please note, the Veteran’s statements may not be discounted solely on the lack of confirmation in the medical records. Please be advised any negative opinion premised solely on an absence of treatment will be returned as inadequate. If the Veteran’s reported history is discounted, the examiner must provide a reason for doing so. A robust rationale is requested for any opinion furnished. If unable to provide an opinion, please indicate whether there is any additional evidence that would enable you to do so, or whether the inability to opine is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, 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.