Citation Nr: 1754223
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 12-27 638 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee

THE ISSUES

1. Entitlement to service connection for a low back disorder.

2. Entitlement to service connection for otitis media.

REPRESENTATION

Veteran represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

Carole Kammel, Counsel
INTRODUCTION

The Veteran served on active duty in the Army from August 1979 to December 1980, with subsequent service in the Army Reserve.

These matters are before the Board of Veterans’ Appeals (Board) on appeal from February 2010 and June 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (ROs) in Nashville, Tennessee, and Waco, Texas, respectively. Jurisdiction of this case now resides with the Nashville RO.

In March 2016, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file.

In June 2016, the Board, in part, reopened previously denied claims for service connection for a low back disability, hallux valgus and otitis media, and remanded the underlying de novo claims to the RO for additional substantive development. These matters have returned to the Board for further appellate consideration. The Board also remanded several issues for issuance of an SOC. The Veteran did not perfect an appeal of these issues and thus they are not before the Board.

In an April 2017 rating action, the RO granted, service connection for hallux valgus of the right and left feet. As the Veteran did not submit a timely notice of disagreement with the initial ratings or the effective dates assigned for these disabilities, these claims are not before the Board for appellate consideration. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Thus, the only issues remaining for appellate consideration are those listed on the title page.

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

REMAND

The Board finds that prior to further appellate review of the claims, additional substantive development is necessary, as outlined below.

Regarding the claim for service connection for a low back disorder, remand is required to obtain an adequate etiological opinion that complies with the Board’s remand directives. Where VA provides the veteran an examination in a service connection claim, even if not statutorily obligated to do so, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion based upon an inaccurate factual premise has no probative value). Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998).

In June 2016, the Board, in part, remanded this claim to obtain a VA examination to determine the etiology her low back disorder. The Board directed the examiner to address the Veteran’s lay statements regarding back symptoms since service discharge. A December 2016 VA examination was conducted. The examiner opined that it was less likely than not that the diagnosed lumbosacral strain was related to the Veteran’s military service, reasoning that there was no evidence of treatment for her spine during military service. The Veteran’s service treatment records (STRs), however, disclosed that she complained of back pain in 1979 after heavy lifting and again in 1980. On an August 1980 Report of Medical History, the Veteran reported recurrent back pain. Thus, as the June 2016 VA examiner’s unfavorable opinion and does not address the Veteran’s lay statements, the Board finds that an addendum opinion is necessary.

Regarding the claim for service connection for otitis media, remand is required for an examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology).

Here, the Veteran’s service treatment records showed that she received treatment for ear pain and an infection in 1979 and 1980, respectively. August 2015 VA treatment records indicate treatment for otitis externa and otitis media. Additionally, the Veteran testified at the Board hearing that she had itchy ears, fluid, and ringing in the ears ever since service discharge. Because there is evidence of a currently diagnosed disability, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required.

Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran and afford her an opportunity to identify by name, address and dates of treatment or examination any relevant medical records, including treatment for her low back and otitis media. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her representative.

2. Obtain and associate with the claims file all outstanding VA records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and her representative.

3. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of her low back disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided.

The examiner must provide the following opinion:

Is it at least as likely as not (i.e., 50 percent probability or greater) that the low back disorder had onset in service, is otherwise related to service, or was manifested to a compensable degree within a year of service discharge in December 1980?

In answering this question, the examiner must address the following: (i) reports of low back pain after lifting heavy items in 1979 and 1980; (ii) December 1978 STR examination report reflecting that the Veteran’s spine was evaluated as “normal;” (iii) the August 1980 Report of Medical History reflecting that the Veteran reported having had recurrent back pain; and (iv) the Veteran’s lay statements regarding back pain since service.

4. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of her otitis media. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided.

The examiner must provide the following opinion:

Is it at least as likely as not (i.e., 50 percent probability or greater) that otitis media had onset in or is otherwise related to active service?

In answering this question, the examiner must address the following: (i) STRs disclosing that the Veteran received treatment for ear pain and an ear infection in 1979 and 1980, respectively; (ii) December 1978 service separation examination report reflecting that the Veteran’s ears were evaluated as “normal;” (iii) August 1980 Report of Medical History reflecting that the Veteran reported having had ear, nose or throat trouble; and (iv) the Veteran’s lay statements of ear pain and other ear symptoms since military service.

5. Notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include rating the claims based on the evidence of record. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable.

6. Ensure compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998).

7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

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

These claims 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. §§ 5109B, 7112 (West 2014).

_________________________________________________
K. MILLIKAN
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) (2017).

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