Citation Nr: 21027933 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 06-27 671 DATE: May 7, 2021 REMANDED Entitlement to an initial compensable rating for bilateral hearing loss prior to November 15, 2015, and a rating in excess of 20 percent thereafter is remanded. Entitlement to an initial compensable rating for residuals of right inguinal hernia repair is remanded. Entitlement to an initial rating in excess of 10 percent for lumbar spine degenerative disc disease (DDD) prior to May 18, 2016, and a rating in excess of 20 percent thereafter is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity (RLE) sciatic radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity (LLE) sciatic radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Marine Corps from June 1962 to April 1966, June 1973 to December 1978, and December 1978 to March 2003. These matters are before the Board of Veterans' Appeals (Board) on appeal from March 2004 and June 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in September 2009, February 2018, and January 2020. In September 2009, the case was remanded, in relevant part, to obtain outstanding medical records and obtain VA examinations to determine the nature and severity of the Veteran's lumbar spine disability, bilateral hearing loss, and right inguinal hernia examination. In February 2018, the case was remanded to obtain a VA examination to determine the nature and severity of the Veteran's right inguinal hernia; request that a VA audiologist interpret the private audiogram graph from November 2015; obtain a translation of the January 2004 VA audiometry for hearing loss; notify the Veteran of the rating criteria in effect prior to September 26, 2003, for orthopedic and neurological manifestations of low back disabilities; and readjudicate all issues remaining on appeal. In January 2020, the case was remanded to again obtain additional treatment records, specifically from Thailand and Germany; notify the Veteran of the rating criteria in effect prior to September 26, 2003, for orthopedic and neurological manifestations of low back disabilities; and schedule the Veteran for new VA examinations to determine the current severity of his bilateral hearing loss, right inguinal hernia, lumbar spine DDD, and RLE and LLE sciatic radiculopathy. The case has been returned to the Board for appellate consideration. As discussed below, the Board unfortunately finds that another remand is necessary for further development. However, the Board also notes that at several of his most recent VA examinations the Veteran indicated that he is not currently appealing anything. The Board notes that this case has been pending since 2003 and the Veteran is currently in receipt of a 100 percent total combined evaluation. If the Veteran is satisfied with his current evaluations and does not wish to continue to pursue these claims, he should provide the RO with a written request to withdraw the currently pending claims. 1. Entitlement to an initial compensable rating for bilateral hearing loss prior to November 15, 2015, and a rating in excess of 20 percent thereafter is remanded. In the January 2020 Board remand, the RO was instructed to obtain additional treatment records for the Veteran and provide him with a new VA examination to determine the current severity of his bilateral hearing loss if said records "yields evidence that so indicates its necessity." The Board notes that additional VA treatment records were obtained dating back to at least 2005 regarding the Veteran's bilateral hearing loss. Nevertheless, these records were not listed as reviewed in the November 2020 supplemental statement of the case (SSOC), nor was the Veteran given a new VA examination for his bilateral hearing loss. Accordingly, remand is again warranted for these records to be considered and to provide the Veteran with another VA examination for his bilateral hearing loss. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding remand by the Board confers on the claimant the right to compliance with the remand requests). 2. Entitlement to an initial compensable rating for residuals of right inguinal hernia repair is remanded. In the January 2020 Board remand, the RO was instructed to obtain additional treatment records and then to obtain a supplemental VA opinion regarding whether "the Veteran's right inguinal hernia is readily recurrent and whether, at any point during the period on appeal, the Veteran's right inguinal hernia has been readily reducible." The Board again notes that this claim has been pending since 2003. Additional treatment records were obtained, and the Veteran was given a VA examination for his hernias in August 2020. However, the examiner only provided an opinion with regard to the Veteran's current right inguinal hernia residuals and did not discuss the full period on appeal as requested. Accordingly, another remand is warranted to obtain a complete opinion regarding such. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding remand by the Board confers on the claimant the right to compliance with the remand requests). 3. Entitlement to an initial rating in excess of 10 percent for lumbar spine DDD prior to May 18, 2016, and a rating in excess of 20 percent thereafter is remanded. 4. Entitlement to an initial rating in excess of 10 percent for RLE sciatic radiculopathy is remanded. 5. Entitlement to an initial rating in excess of 10 percent for LLE sciatic radiculopathy is remanded. In the January 2020 and February 2018 Board remands, the RO was instructed to notify the Veteran of the rating criteria in effect prior to September 26, 2003 for orthopedic and neurological manifestations of low back disabilities. A review of the record shows that this directive was not completed. Accordingly, another remand is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding remand by the Board confers on the claimant the right to compliance with the remand requests). 6. Entitlement to a TDIU is remanded. The issue of entitlement to a TDIU is inextricably intertwined with the outcome of the other above listed issues. Accordingly, this issue must be remanded as well. The matters are REMANDED for the following action: 1. Update the electronic file with any new VA treatment records. 2. Review all of the recently obtained VA treatment records (including those records obtained by VA in September 2020 dating back to 2005). 3. Schedule the Veteran for a VA examination to determine the nature and severity of his bilateral hearing loss. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. 4. The AOJ should notify the Veteran of the rating criteria in effect prior to September 26, 2003, for orthopedic and neurological manifestations of low back disabilities. 5. Obtain a VA opinion to determine the severity of the Veteran's service-connected right inguinal hernia and residuals throughout the period on appeal and report all signs and symptoms necessary for rating the disorder. Specifically, the examiner should determine whether the Veteran's right inguinal hernia is readily recurrent and whether, at any point during the period on appeal (since 2003), his right inguinal hernia has been readily reducible. The examiner should also opine as to the size of the Veteran's right inguinal hernia; whether it was small or large, and had any changes thereof, throughout the appeal period (since 2003). A copy of the entire claims file should be provided to the examiner and a note that it was reviewed should be provided in his or her report. If there is a worsening or improvement of the Veteran's right inguinal hernia symptoms during the period on appeal, as evidenced by the record or any assessment of the examiner, this should be specified in the addendum opinion, with dates of worsening and/or improvement. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Ruiz, 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.