Citation Nr: 21032251 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-36 701 DATE: May 26, 2021 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to a compensable disability rating for left ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1986 to June 1991. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 1. Entitlement to service connection for a low back disability is remanded. With respect to the service connection claim for a low back disability, there is a November 2012 opinion in which the examiner concluded that the Veteran's current low back disability is less likely than not related to active service. The examiner reasoned that, although the Veteran's service treatment records reflect reports of lower back pain, "there is no further entry in his medical record concerning chronic lower back problems until the VA records of 2012." The Board finds this opinion to be inadequate for VA adjudication purposes because an examiner cannot rely on lack of documentation to formulate an opinion. See Fountain v. McDonald, 27 Vet. App. 258 (2015) (citing Horn v. Shinseki, 25 Vet. App. 231 (2012)). Thus, on remand, the RO should obtain another opinion which addresses this matter. 2. Entitlement to service connection for a right knee disability and for a left knee disability is remanded. With respect to the service connection claims for a right knee disability and for a left knee disability, the Veteran reported that he had been experiencing bilateral knee pain for approximately 25 years to his VA physician in November 2013. This indicates that his knee pain began in 1988 during active service. The Board finds this report to be competent and credible. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). He also has asserted that his current bilateral knee disability is caused by his lower back disability. To date, however, he has not been provided with an examination to determine the nature and etiology of his current bilateral knee disability/ies. Therefore, the Board finds that, on remand, the RO should schedule the Veteran for examination to address these matters. See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for right ear hearing loss is remanded. With respect to the service connection claim for right ear hearing loss, the Veteran was examined for his bilateral hearing loss in November 2012. The November 2012 examiner concluded that the Veteran's current right ear hearing loss was less likely than not due to service. The examiner reasoned that the "[c]ited evidence does not show findings related to hearing loss for the right ear." The examiner did not cite to any evidence in the claims file indicating a more likely cause of the Veteran's right ear hearing loss. Thus, the Board finds that this opinion is inadequate for VA adjudication purposes. The Veteran has submitted an opinion by a private provider dated in October 2013 in which she concluded that his right ear hearing loss was at least as likely as not due to in-service noise exposure. In her reasoning, the private provider stated that there was a significant 10 decibel (dB) shift in the puretone thresholds at 500 Hertz (Hz), 4000 Hz, and 6000 Hz. The Board notes that these shifts indicate continuous puretone thresholds within normal limits as defined by 38 C.F.R. § 3.385 and Hensley v. Brown, 5 Vet. App. 155 (1993). Thus, the Board finds that the private opinion also is inadequate to determine the nature and etiology of the Veteran's right ear hearing loss. There is no other opinion of record addressing the nature and etiology of the Veteran's right ear hearing loss. Thus, on remand, the RO should obtain an opinion which addresses this matter. 4. Entitlement to a compensable disability rating for left ear hearing loss is remanded. In October 2013, the Veteran was examined by a private provider to determine the current severity of his service-connected left ear hearing loss. The puretone threshold measurements taken for the left ear at 2000 Hz and 3000 Hz are unclear from a review of this evidence. Thus, the Board finds that, on remand, the RO should contact the audiologist who conducted the October 2013 private examination for clarification as to the puretone thresholds at that time. The Veteran also had a VA audiologic evaluation in September 2015. The VA audiologist noted in September 2015 that the puretone test results revealed hearing within normal limits from 250-1000 Hz, moderate sensorineural hearing loss from 2000-4000 Hz, and word recognition ability "is excellent at levels tested." The exact puretone threshold measurements and word recognition score, including which test was used to evaluate word recognition, are not included in the record. Thus, the Board finds that, on remand, the RO should contact the VA audiologist who conducted the September 2015 audiologic evaluation and request clarification as to the puretone thresholds, speech recognition test used, and speech recognition scores at that time. After these results have been obtained, the Board finds that the Veteran should be provided with an updated examination to determine the current severity of his service-connected left ear hearing loss. See Chotta v. Peake, 22 Vet. App. 80 (2008). The RO finally should obtain the Veteran's updated treatment records. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran's current low back disability(s). If possible, this opinion should be obtained from a clinician other than the clinician who provided the November 2012 opinion. The decision as to whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the requested opinion. Based on a review of the claims file and the results of the Veteran's physical examination (if held), the clinician should identify any low back disability/ies currently experienced by the Veteran. For each low back disability, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) related to active service or any incident of service, including as due to heavy lifting, marching, and/or running, or in-service complaints of back pain. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each low back disability currently experienced by the Veteran, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a low back disability, alone, is insufficient rationale for a medical nexus opinion. The clinician also is advised not to review or rely upon the November 2012 VA medical opinion in preparing his or her own opinion. 3. Forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran's current bilateral knee disability/ies. The decision as to whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the requested opinion. Based on a review of the claims file and the results of the Veteran's physical examination (if held), the clinician is asked to identify all bilateral knee disability/ies currently experienced by the Veteran. For each knee disability, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) related to active service. The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a low back disability caused or aggravated (permanently worsened) a knee disability, if diagnosed. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each of the Veteran's knees, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a knee disability, alone, is insufficient rationale for a medical nexus opinion. 4. Contact the private audiologist who conducted the Veteran's October 28, 2013, audiologic evaluation and ask her to provide the puretone audiometric testing results from that evaluation in numerical and not graphic form. A copy of any request(s) sent to this private audiologist, and any reply, should be included in the claims file. 5. Contact the VA audiologist who conducted the Veteran's September 30, 2015, audiology evaluation and ask her to provide the puretone thresholds, speech recognition test used, and speech recognition scores from that evaluation. A copy of any request(s) sent to this VA audiologist, and any reply, should be included in the claims file. 6. Thereafter, forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran's right ear hearing loss. The decision as to whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the requested opinion. Based on a review of the claims file and the results of the Veteran's physical examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that right ear hearing loss, if diagnosed, is related to active service. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for right ear hearing loss, alone, is insufficient rationale for a medical nexus opinion. The clinician also is advised not to review or rely upon a November 2012 VA medical opinion or an October 2013 private medical opinion in preparing his or her own opinion. 7. Schedule the Veteran for examination to determine the current nature and severity of his service-connected left ear hearing loss. 8. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Seserman 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.