Citation Nr: 1743976	
Decision Date: 09/15/17    Archive Date: 10/10/17

DOCKET NO.  08-09 837	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


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 cervical spine condition.

4. Entitlement to service connection for a right shoulder condition.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

A-L Evans, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1976 to May 1981.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2007 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA).

The Veteran appeared at a hearing before the undersigned Veterans Law Judge in December 2012. 

In April 2014 and January 2017, the Board remanded the case for further development.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

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


REMAND

Unfortunately, additional development is necessary before the claims on appeal can be adjudicated.

The Veteran contends that his claimed bilateral hearing loss, tinnitus, cervical spine and right shoulder disabilities are the result of injuries sustained during a head-on collision during service.  At his December 2012 Travel Board hearing, the Veteran noted that he experienced a decrease in his hearing after the car accident.  He also stated that he noticed ringing in his ears while stationed at Camp Lejeune which increased after the car accident.  He testified that due to the car accident, he experienced pain and was not able to move his neck.  He stated that he hurt his right shoulder in the car accident and that it was tight and his range of motion was limited.  

Regarding the Veteran's claims for service connection for bilateral hearing loss and tinnitus, pursuant to the Board's January 2017 remand, a VA addendum opinion was requested to determine whether it was at least as likely as not that any current hearing loss and tinnitus disability was related to the Veteran's active service.  It was noted that the VA examiner must consider the Veteran's lay statements regarding his in-service noise exposure.

In a January 2017 VA medical opinion, it was noted that the Veteran's claims file was reviewed.  It was found that service treatment records documented no significant worsening shifts in hearing thresholds during military service.  There were no complaints of hearing loss, and the presence of tinnitus was denied.  The Veteran did not have combat experience and his military occupational specialty as an administrative clerk had a low probability of noise exposure.  The Veteran reported 20+ years of post-military civilian occupational and recreational noise exposure.  Based on the evidence provided, the VA examiner opined that the Veteran's hearing loss was not related to military service.  The tinnitus was less likely as not related to military service and was at least as likely as not related to hearing loss, which began after military service.  

As noted in the previous remand, and requested in the Board's January 2017 remand, it is not apparent that the VA examiner considered the lay statements regarding the onset of the Veteran's claimed hearing loss and tinnitus as related to the moving vehicle accident which occurred while in service.  Therefore, the matter must be remanded once again for compliance with the previous order/completion of the actions sought.  

Regarding the Veteran's claim of service connection for a cervical spine condition, pursuant to the Board's January 2017 remand, a VA addendum opinion was requested to determine whether it was at least as likely as not that any current cervical spine disability was related to the Veteran's active service.  In rendering the opinion, the VA examiner was asked to note and consider the June 2005 statement of Dr. CCC, in which the March 2016 VA examiner noted was not tabbed in the Veteran's claims file.  

In a January 2017 VA medical opinion, the VA examiner's response the Board's requested determination was "asked and answered on March 16, 2016."  The VA examiner stated that there was no tabbing in the Veteran's claims file to assist in the document review.  He noted that the medical opinion provided in the March 2016 VA examination continued to be reasonable.  

The Board finds the January 2017 VA medical opinion, provided by the same VA examiner in the March 2016 VA examination, remains inadequate.  It was noted in the Board's January 2017, that a review of the Veteran's claims file reflected that the June 2005 statement of Dr. CCC was of record.  The document name and page numbers were provided, as they are here.  (See July 2011 Medical Treatment Records (Furnished by Social Security Administration) pages 4-6).  

As the VA examiner again did not review the private doctor's report, a remand is needed to fully and fairly adjudicate this issue.

Regarding Veteran's claim of service connection for a right shoulder condition, pursuant to the Board's January 2017 remand, a VA addendum opinion was requested to determine whether it was at least as likely as not that any current right shoulder disability was related to the Veteran's active service.  The VA examiner was to consider the Veteran's reports of initial treatment for right shoulder.  This was due to the March 2016 VA examiner's notation that the "2507" incorrectly cited a right shoulder injury from a moving vehicle accident in 1977 and that it was a left shoulder injury which was symptomatic after a head on collision when the Veteran was wearing a seat belt.

The Board found that the March 2016 medical opinion was not adequate, as the VA examiner presumed that the Veteran's left shoulder was injured while in service.  This assumption was not consistent with the Veteran's lay statements and testimony at his Board hearing which reflected discussions regarding the pain he experienced in his right shoulder due to the motor vehicle accident while in service.  The Board acknowledged that the some of the medical evidence of record reflected that the Veteran complained of left shoulder pain during the pendency of the appeal; however, the Veteran's original claim and subsequent VA medical examinations pursuant to the appeal are in respect to a claimed right shoulder disability.  

In a January 2017 VA medical opinion, the VA examiner's note regarding the requested inquiry was "asked and answered on March 16, 2016."  The VA examiner stated that the medical opinion provided in the March 2016 VA examination continued to be reasonable.  

Although the AOJ has readjudicated the matter on the merits, suggesting that development pursuant to the Board's January 2017 remand was complete and acceptable, the Board finds that the January 2017 VA medical opinion, provided by the same VA examiner in the March 2016 VA examination, remains inadequate.  As such, a remand is needed to fully and fairly adjudicate this issue.

Accordingly, the case is REMANDED for the following action:

1.  Return the claims file to the January 2017 hearing loss and tinnitus VA examiner, if available, for an addendum opinion.  If the original examiner is not available, the file should be reviewed by another examiner of similar qualifications to obtain the opinion.  If an additional examination is deemed necessary by the examiner to respond to the question presented, one should be authorized.

After review of the entire record, the examiner is asked to specifically address the following question:

Is it at least as likely as not (50 percent or greater probability) that any current hearing loss and tinnitus is related to his active service?  

In rendering the opinion, the examiner must consider the Veteran's lay statements regarding his in-service noise exposure, to include the moving vehicle accident which occurred while in service.  

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached.

2.  Schedule the Veteran for an appropriate VA spine examination conducted by a VA examiner other than the VA examiner who provided the March 2016 VA examination and January 2017 VA addendum opinion.  The entire claims file must be reviewed by the examiner.  All appropriate tests and studies must be performed and all clinical findings must be reported in detail. 

The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current cervical spine disability is related to his active service?  

In rendering the opinion, the examiner must note and consider the June 2005 statement of Dr. CCC, which has been of record and noted in the Board's previous remand, found in the VBMS document dated July 2011, titled Medical Treatment Records (Furnished by Social Security Administration), on pages 4-6.

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached.

3.  Schedule the Veteran for an appropriate VA orthopedic examination conducted by a VA examiner other than the VA examiner who provided the March 2016 VA examination and January 2017 VA addendum opinion.  The entire claims file must be reviewed by the examiner.  All appropriate tests and studies must be performed and all clinical findings must be reported in detail. 

The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current right shoulder disability is related to his active service?  

In rendering the opinion, the examiner must recognize that the Veteran's original claim is for a right shoulder disability, that subsequent VA medical examinations pursuant to the appeal are in respect to a claimed right shoulder and that his testimony is of right shoulder symptoms due to the moving vehicle accident which occurred while in service.  

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached.

4.  Finally, readjudicate the appeal.  If the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on this matter.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This appeal must be afforded expeditious treatment.  The law requires that all claims that are 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).



_________________________________________________
A. C. MACKENZIE
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) (2016).



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