Citation Nr: 22015703 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 17-47 563 DATE: March 18, 2022 REMANDED Entitlement to service connection for a recurrent lumbar spine disability is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active service from August 1970 to August 1974. In June 2019, the Veteran appeared at a hearing before a Veterans Law Judge at the Houston, Texas, Regional Office (RO). The hearing transcript is of record. In April 2021, the Board of Veterans' Appeals (Board) informed the Veteran that the Veterans Law Judge who had conducted the June 2019 hearing had retired, and he had the right to a hearing before a different Veterans Law Judge. The Veteran was notified that if he did not respond within 30 days, it would assume that he did not wish to have another hearing. The Veteran did not respond the Board's notice. Entitlement to service connection for a recurrent lumbar spine disability is remanded. The report of the July 1970 physical examination for service entrance states that no spine abnormalities were identified. The report of an August 2021 spine examination conducted for the Department of Veterans Affairs (VA) and a December 2021 addendum thereto states that the Veteran was diagnosed with lumbosacral strain. The examiner concluded that "the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in service injury, event, or illness" as "the Veteran's discharge or separation exam did not reveal any lower back problem and no record of back injury during the service recorded." He found further that "the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness" as "there is no record of back injury during the entrance physical examination." Given the conflicting findings as to whether the claimed recurrent lumbar spine disability existed prior to service entrance, the Board finds that the examination report and the addendum thereto are of essentially no probative value. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further VA spine examination is needed. Entitlement to a compensable rating for bilateral hearing loss is remanded. In its July 2021 Remand instructions, the Board directed the Agency of Original Jurisdiction to "obtain and associate with the claims fall all outstanding results of audiological testing, including audiograms dated from July 2020" and to "inform the Veteran if any requested records cannot be obtained." The Agency of Original Jurisdiction did not conduct the requested development action. The Agency of Original Jurisdiction's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Clinical documentation dated after August 2021 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who treated him for any lumbar spine disability and the service connected bilateral hearing loss. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records not already of record, including the those pertaining to the July 2019 audiometric testing and treatment after August 2021. 3. Schedule the Veteran for a VA spine examination conducted by a medical doctor to assist in determining the nature and etiology of any identified recurrent lumbar spine disability and any relationship to active service. The examiner must review the record. A rationale for all opinions should be provided. The examiner should: (a) Identify all lumbar spine disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent lumbar spine disability had its onset during active service or is related to any incident of service, including the documented in service lumbar spine symptoms and the Veteran's subjective history of recurrent lumbar spine complaints since active service. (c) If any identified recurrent lumbar spine disability is shown by clear and unmistakable (obvious and manifest) evidence to have existed prior to service entrance, opine whether it is clear and unmistakable that the preexisting recurrent lumbar spine disability was not aggravated during active service. If any identified preexisting recurrent lumbar spine disability increased in severity during active service, then the examiner should address whether the evidence clearly and unmistakably demonstrates that the increase was due to the natural progression of the disability. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Emily A. Kotroco 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.