Citation Nr: 1528332	
Decision Date: 07/01/15    Archive Date: 07/15/15

DOCKET NO.  14-01 304	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for a low back injury.

4.  Entitlement to service connection for bilateral inguinal hernias.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

D. J. Drucker, Counsel


INTRODUCTION

The Veteran had verified active duty from February 1966 to January 1968 and had unverified Reserve service from 1978 to 2003, with periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA).

This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.



REMAND

Reserve Service

In his August 2010 claim for VA benefits, the Veteran reported that he served in the Reserve from 1975 to 2003.  The RO obtained some service treatment records, dated from December 1978 (an enlistment examination report) to February 2003 (a physical profile).  But see July 2012 RO memorandum of unavailability of Reserve service personnel and service treatment records.  His periods of active duty for training and inactive duty training have not been verified.

Back Injury

In May 2013, the Veteran reported that he injured his back in August 2000 while stationed at the Goodfellow Support Center as an active Reservist for summer camp at Erwin, California, and experienced back difficulty since that time.  He was treated by unit medics there and at Fort McCoy in September 2000.  The Veteran underwent back surgery shortly after his return from Fort McCoy.  Efforts should be made to obtain the medical records regarding the Veteran's back surgery.

Available service treatment records do not discuss treatment for a back injury.  An August 2012 statement from K.M.S., M.D., is to the effect that the Veteran suffered from a chronic back condition that required intermittent treatment when symptoms worsened.

VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Here, as the record shows that the Veteran has a current back disability and he has reported a back injury in service, the low threshold for obtaining a medical opinion or examination is triggered.  An examination is needed to determine whether the Veteran's back disability is related to service.

Bilateral Hearing Loss and Tinnitus

The Veteran reports the onset of tinnitus in approximately 2000.  The RO conceded his exposure to acoustic trauma while on active duty.  A May 2011 VA examiner reported bilateral hearing loss consistent with VA regulations, see 38 C.F.R. § 3.385 (2014), and tinnitus.  The examiner provided a negative etiology opinion based on normal audiometric findings at the time of the Veteran's separation examination and that tinnitus was first noticed ten years earlier, many years after active duty service.

In a lengthy November 2013 medical opinion, a VA audiologist opined that the Veteran's hearing loss was not likely due to an event during active service, or to any event during the thirteen years afterwards.  Subsequent audiometric evaluations in 1983, 1990, and 1999, show a gradual, inconsistent elevation of thresholds.  The Veteran denied a history of hearing loss and tinnitus through March 1999.  

The examiner stated that the Veteran was likely exposed to some degree of noise during Reserve duty but it was unclear that it contributed to current hearing loss.  In the examiner's opinion, it was less likely than not that the Veteran's hearing loss was due to an event during military service, given the gradual, progressive, nature of the hearing loss, the Veteran's post-military noise exposure, the natural aging process, and the lack of definitive or strongly suggestive evidence of a cause-effect relationship of noise exposure and the documentation of loss during Reserve duty.  The examiner also opined that the Veteran's tinnitus was not due to an event during military service.

The November 2013 examiner failed to consider if the Veteran's hearing loss and tinnitus were aggravated during a period of active duty for training.  A veteran is presumed in sound condition except for defects noted when examined and accepted for service.  Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness.  38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304 (2014); VAOPGCPREC 3-2003

The Board is of the opinion that the Veteran should be afforded a new VA examination to determine the etiology of any bilateral hearing loss and tinnitus disabilities, including a determination as to whether the disabilities worsened in military service.  See McLendon, 20 Vet. App. at 83; Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009).

Bilateral Inguinal Hernia Disability

A March 2001 statement from M.E.H., M.D., indicates that the Veteran underwent bilateral open hernia repair in October 2000 and had a difficult post-operative course.  It was requested that the Veteran not participate in his annual physical training test until he recovered completely.  

Service records include profiles for restricted activity due to the Veteran's hernia disability.

In June 2002, J.P.L., M.D., noted weakness in the Veteran's right groin wall despite two hernia repairs.  The physician opined that further enlistment and physical service would be a contraindication and likely lead to recurrent of the hernia.  A December 2002 note from Dr. J.P.L. indicates extensive repair of a left inguinal hernia with restricted lifting on a lifelong basis. 

A January 2003 service memorandum reflects the Veteran's treatment for a left inguinal hernia and requests that his records be sent to a Medical Review Board. 

In August 2012, Dr. K.M.S. noted that scarring from inguinal hernia repair was an aggravating factor.

The Veteran should be afforded a VA examination to determine the etiology of any inguinal hernia disability, including a determination as to whether the disability worsened in military service.  See McLendon, 20 Vet. App. at 83; Davidson v. Shinseki, 581 james47@example.org.

Accordingly, the case is REMANDED for the following action:

1. Verify all specific periods of the Veteran's ACDUTRA and INACDUTRA (not retirement points) and obtain any additional service treatment records for his Reserve service with the 620th CSB, 4301 Goodfellow Blvd., St. Louis, MO, 63026.

2. Efforts to obtain verification and service treatment records must continue until it is received, unless it is reasonably certain that records verifying such service do not exist, or that further efforts to obtain such records would be futile.

3. Request that the Veteran complete authorizations for VA to obtain all private treatment records regarding his back surgery.

a. If the appellant fails to provide necessary authorizations, inform him that he can submit the evidence himself.

b. If any requested records cannot be obtained, inform the appellant what records could not be obtained, the efforts made to obtain the records, and what further actions will be taken on his claims.

4. After completing the development requested above, schedule the Veteran for a VA examination by a physician to determine whether current back and hernia disabilities are related to service.  After completion of the examination and review of the record, the examiner should answer the following questions:

a. Back Disability

i. Has the Veteran had a diagnosed back disability at any time since 2010?

ii. If so, is it as likely as not that the Veteran's diagnosed back disability is the result of a disease or injury in active service, or had its onset in such service?

iii. The examiner should provide reasons for this opinion.  The examiner should discuss the Veteran's post-service reports of symptoms.




b. Hernia Disability

i. If a bilateral inguinal hernia disorder is found, the examiner should provide an opinion as to whether it is at least as likely as not that such disorder was incurred in or aggravated by active service or is otherwise related to active service.

ii. If the bilateral hernia disorder did not have its onset in service, the examiner should state whether it is undebatable (clearly and unmistakably) that the condition existed prior to a period of the Veteran's active service, to include being a congenital defect.  The examiner should state whether the disorder is a disease or a congenital defect. 

iii. If it is determined that the identified disorder is a congenital defect, the examiner should opine whether a superimposed disability became manifested in service and, if so, address the nature of that superimposed disability. 

iv. The examiner should then opine whether it is at least as likely as not that any superimposed disability developed in service or is otherwise causally related to service.

v.  If it is determined that the identified disability is not a congenital defect, the examiner should provide an opinion addressing whether clear and unmistakable (i.e., obvious or manifest) evidence supports finding both that the disorder existed prior to service and that it did not increase in severity during service other than due to the natural progression of the disorder.  The examiner should be advised that temporary or intermittent flare-ups of a pre-service condition, without evidence of worsening of the underlying condition, are not sufficient to be considered aggravation.

c. The Veteran is competent to report symptoms and observable history.  If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so.

d. The absence of evidence of treatment for back or hernia symptoms in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinions.

e. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered.  All opinions and conclusions must be supported by reasons

5. Then, schedule the Veteran for VA examination to be performed by a physician with expertise in diagnosing hearing disorders (an ear, nose, and throat (ENT) specialist) to determine if current bilateral hearing disability and tinnitus are related to service.  After completion of the examination and review of the record, the examiner should answer the following questions: 

a. If a bilateral hearing disorder or tinnitus is found, the examiner should provide an opinion as to whether it is at least as likely as not that such disorder(s) was(were) incurred in or aggravated by active service or is otherwise related to active service.

b. If the bilateral hearing disorder or tinnitus did not have its onset in service, the examiner should state whether it is undebatable (clearly and unmistakably) that the condition existed prior to a period of the Veteran's active service.  

c. If it is determined that the identified bilateral hearing or tinnitus disability is not a congenital defect, the examiner should provide an opinion addressing whether clear and unmistakable (i.e., obvious or manifest) evidence supports finding both that the disorder existed prior to service and that it did not increase in severity during service other than due to the natural progression of the disorder.  The examiner should be advised that temporary or intermittent flare-ups of a pre-service condition, without evidence of worsening of the underlying condition, are not sufficient to be considered aggravation. 

d. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.  If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 

e. The absence of evidence of treatment a hearing disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion.

f. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered.  All opinions and conclusions must be supported by reasons.

6. Then, readjudicate the issues on appeal.  If any claim on appeal remains denied, the AOJ should issue a supplemental statement of the case before returning the case to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2014).





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