Citation Nr: 18124057
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 16-62 864
DATE:	August 7, 2018
ORDER
The application to reopen the claim of entitlement to service connection for lumbar myositis and spasm, degenerative lumbar disc disease, L4-L5 disc herniation, claimed as a back disability is granted.
The application to reopen the claim of entitlement to service connection for bilateral hearing loss is granted.
REMANDED
Entitlement to service connection for lumbar myositis and spasm, degenerative lumbar disc disease, L4-L5 disc herniation, claimed as a back disability (hereinafter “back disability”) is remanded.
Entitlement to service connection for bilateral hearing loss is remanded.
Entitlement to service connection for tinnitus is remanded.
Entitlement to compensation under 38 U.S.C. § 1151 for hemochromatosis, claimed to have resulted from treatment received for hepatitis C at VA medical facilities, is remanded.
FINDINGS OF FACT
1.  In March 2012, the Regional Office (RO) denied the claim of entitlement to service connection for a back disability.  The Veteran did not appeal this decision and it became final. 
2.  The additional evidence received since the March 2012 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a back disability.
3.  In March 2012, the RO denied the claim of entitlement to service connection for bilateral hearing loss.  The Veteran did not appeal this decision and it became final.
4.  The additional evidence received since the March 2012 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for bilateral hearing loss. 
CONCLUSIONS OF LAW
1.  The March 2012 rating decision, which denied the claim of entitlement to service connection for a back disability, is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017).
2.  The criteria for reopening a claim of entitlement to service connection for a back disability have been met.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 
3.  The March 2012 rating decision, which denied the claim of entitlement to service connection for bilateral hearing loss, is final.  38 U.S.C.  § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017).
4.  The criteria for reopening a claim of entitlement to service connection for bilateral hearing loss have been met.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from June 1966 to June 1968.
New and Material 
1. New and material evidence that is sufficient to reopen the Veteran’s claim for service connection for a back disability has been submitted.
and
2. New and material evidence that is sufficient to reopen the Veteran’s claim for service connection for bilateral hearing loss has been submitted.
The Veteran’s claims of entitlement to service connection for a back disability and bilateral hearing loss were denied by the RO in a March 2012 rating decision.  The Veteran did not appeal these decisions, nor did he submit any relevant evidence within one year of the decision; therefore, they are final.  See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b); 20.302, 20.1103 (2017); see also Bond v. Shinseki, 659 F.3d 1362 (2010).
Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C. § 5108.
New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).
In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist.  Id.  
VA must review all of the evidence submitted since the last final rating decision to determine whether the claim may be reopened.  See Hickson v. West, 12 Vet. App. 247, 251 (1999).  For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).
The evidence considered at the time of the March 2012 rating decision included service treatment records (STRs), lay statements, post service medical records and VA examinations.  
Service connection for a back disability was denied because there was no evidence establishing that the condition was incurred in service, or within the one year presumptive period following the Veteran’s discharge from service.  
The evidence received since the March 2012 rating decision consists of lay statements, VA examinations, the report of an informal conference at the RO, VA medical records and private medical records.  This evidence is “new,” as it was not previously submitted to agency decision makers.  Some of it is also material as it relates to unestablished facts necessary to substantiate the claim.  Specifically, a VA medical examination indicated that the Veteran was treated for low back pain in service.  Accordingly, the claim for service connection for a back disability is reopened.  See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  The appeal is granted to that extent only.
Service connection for bilateral hearing loss was denied because there was no evidence of a link between the Veteran’s hearing loss and his military service.  
The received since the March 2012 rating decision consists of lay statements, VA medical records and private medical records.  This evidence is “new,” as it was not previously submitted to agency decision makers.  Some of it is also material as it relates to unestablished facts necessary to substantiate the claim.  Specifically, private medical records showing audiometry results dated June 2016 and supporting the Veteran's private audiologist’s diagnosis of bilateral hearing loss were submitted.  Accordingly, the claim of entitlement to service connection for bilateral hearing loss is reopened.  See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  The appeal is granted to that extent only.
REASONS FOR REMAND
1.  Entitlement to service connection for lumbar myositis and spasm, degenerative lumbar disc disease, L4-L5 disc herniation, claimed as a back disability is remanded.
The Veteran was afforded a VA examination in May 2017.  The examiner was asked to provide an opinion as to whether it is at least as likely as not that the claimed lumbar myositis and spasm, degenerative lumbar disc disease, L4-L5 herniation, is related to an injury the Veteran sustained in service in July 1967.  The examiner determined that it was less likely than not that the current condition was caused by his in-service injury.  The examiner stated that “lumbar spasm is not the etiology of degenerative changes as seen at the present lumbar condition.”  The Board finds that this opinion is inadequate for evaluation purposes as it did not provide a thorough analysis and rationale.  On remand, the Veteran should be scheduled for a VA examination to determine the etiology of any diagnosed back disability.   
2. Entitlement to service connection for bilateral hearing loss is remanded.
and
3.  Entitlement to service connection for tinnitus is remanded.
The Veteran contends that his hearing loss is due to his in-service duties while serving in an infantry unit.  The Veteran’s DD 214 and military personnel records show that he served with the 7th Infantry Division in Korea.  His military occupational specialty (MOS) listed on his DD 214 is unit and org supply specialist.  Recently submitted private medical records indicate the Veteran has been diagnosed with bilateral hearing loss.  
The Veteran was afforded a VA hearing loss examination in March 2012.  It is not evident from the report of the examination that the examiner asked the Veteran to describe the type of military noise he was exposed to during service, or that he was asked about post-service noise exposure.  However, the examiner did note that the Veteran reported that he had a civilian job with the Air Force National Guard.  It is unclear from the report whether he questioned the Veteran specifically regarding any post-service occupational and/or recreational noise exposure.  The examiner determined that it was not at least as likely as not that the Veteran’s hearing loss was caused by or a result of his military service because an audio test administered prior to separation indicated normal hearing levels in both ears and that “current hearing loss is most likely due to occupational noise exposure after service” or due to “typical changes expected with aging rather than to military noise during active service in 1966-1968.”  
The Board finds the this opinion is inadequate, as the examiner used a lack of evidence showing hearing loss upon separation to support the opinion that the Veteran’s current hearing loss is not related to his period of active service.  Under 38 C.F.R. § 3.385, service connection for a current hearing disability is not precluded where hearing was within normal limits at separation.  
Regarding tinnitus, the VA examiner only stated that the Veteran did not report the condition.  It is unclear from the examination report whether he questioned the Veteran regarding tinnitus or whether he relied on the Veteran’s silence in reaching that conclusion.  Regardless, although the record does not currently include evidence establishing when the tinnitus began, his statements submitted in support of his claim suggest he has experienced it at some point.  On remand, an opinion should be obtained regarding the etiology of tinnitus. 
For these reasons, the Board finds that the March 2012 opinions are inadequate and that addendum opinions are needed which fully consider and address the evidence of record.
4. Entitlement to compensation under 38 U.S.C. § 1151 for hemochromatosis, claimed to have resulted from treatment received for hepatitis C at VA medical facilities, is remanded.
With regard to the Veteran’s claim for entitlement to service connection for hemochromatosis, the Board notes the Veteran asserted in his April 2017 claim that this disorder is due to treatment he received at VA facilities for hepatitis, more specifically he contends that it is due to blood work he was required to have on a regular basis. 
The Veteran underwent a VA hepatitis, cirrhosis and liver condition examination in June 2017.  The examiner stated that it is less likely than not that the Veteran’s hemochromatosis is proximately due to or the result of hepatitis C.  This opinion is inadequate for adjudication purposes as it does not address the Veteran’s contentions that he developed hemochromatosis as a result of treatment he received at VA facilities.  On remand an addendum opinion should be obtained that addresses the etiology of the Veteran’s hemochromatosis. 
The matters are REMANDED for the following action:
1. Obtain all outstanding, pertinent VA treatment records and associate them with the electronic file.  If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented.
2. Provide the Veteran an opportunity to submit any outstanding private treatment records relating to his service-connected disabilities.  Provide the Veteran with the appropriate authorization for release form(s).
For any outstanding private treatment records identified and authorized by the Veteran, make at least two (2) attempts to obtain such records.  All attempts made must be documented in the electronic file, to include the unavailability of any identified records.  For any identified records that are not obtained, notify the Veteran of such and provide him with an opportunity to submit those records. 
3. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed back disorder(s).  The claims file, including this remand, should be reviewed by the examiner and such review should be noted in the examination report.
The examiner is asked to respond to the following:
a) Identify each disability of the lumbar spine that presently exists or has existed since the filing of the claim, to include lumbar myositis and spasm, degenerative lumbar disc disease, and L4-L5 disc herniation. 
b)  For each diagnosed back disability, the examiner is to determine whether it is at least as likely as not (a 50 percent probability or greater) that the identified lumbar spine disabilities had their onset in service or are otherwise etiologically related to the injuries the Veteran was treated for in service, in June and July 1967, or are in any other way related to the Veteran’s service.  
The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.
A complete rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, (s)he should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).
The examiner is reminded to consider and address the Veteran’s lay statements regarding the nature and onset of his disabilities; more specifically that his back disability is related to an incident in service in which he injured his back lifting rocks. 
4. After obtaining any outstanding records, return the file to the VA examiner who conducted the March 2012 hearing loss and tinnitus examination.  The electronic file and a copy of this Remand must be made available to the examiner.  The examiner should note in the examination report that the electronic file and the Remand have been reviewed.  If the March 2012 VA examiner is not available, the electronic file should be provided to an appropriate medical professional so as to render the requested opinion.  If the examiner determines that another VA examination is necessary, one should be scheduled.
The examiner is asked to provide an opinion as to the following:
a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss began during service or is etiologically related to exposure to excessive noise during active duty service, specifically noise exposure the Veteran experienced in the course of his duties?  Please explain why or why not.
b) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s tinnitus is related to his period of active duty service from June 1966 to June 1968, or that tinnitus manifested within a year of his separation from service.  Please explain why or why not.
In providing this opinion, the examiner must recognize the fact that no diagnosis of hearing loss in service is not, by itself, a sufficient reason to deny service connection for hearing loss.
The examiner is advised that the term “as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of conclusion as it is to find against it.
The examiner must include in the medical report the rationale for any opinion expressed, based on the reviewer’s clinical experience, medical expertise, and established medical principles.  However, if the examiner cannot respond to an inquiry without resort to mere speculation, (s)he should so state, and further explain why it is not feasible to provide a medical opinion, stating what, if any, additional evidence would permit such an opinion to be made.
5.  With respect to the Veteran’s 38 C.F.R. § 1151 claim, after obtaining any outstanding records, return the file to the VA examiner who conducted the June 2017  hepatitis, cirrhosis and other liver conditions examination.  The electronic file and a copy of this Remand must be made available to the examiner.  The examiner should note in the examination report that the electronic file and the Remand have been reviewed.  If the June 2017 VA examiner is not available, the electronic file should be provided to an appropriate medical professional so as to render the requested opinion.  If the examiner determines that another VA examination is necessary, one should be scheduled.
The examiner is asked to provide an opinion as to the following:
a)  Did the treatment the Veteran received for hepatitis C, specifically blood tests, result in any disability, to include hemochromatosis?  If so, please identify each disability.
b)  If any additional disability or disabilities exist, is it at least as likely as not (50 percent probability or greater) that the proximate cause of such disability  was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in providing medical treatment for hepatitis C?  In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider.
c)  If additional disability or disabilities exist, is it at least as likely as not (50 percent or greater) that such was due to an event not reasonably foreseeable?
In determining whether an event is not reasonably foreseeable, the standard is what a “reasonable health care provider” would have considered to be an ordinary risk of treatment that would be disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32, which requires the primary health care provider to explain the reasonably foreseeable risks associated with the surgery or treatment being provided.
The examiner must include in the medical report the rationale for any opinion expressed, based on the reviewer’s clinical experience, medical expertise, and established medical principles.  However, if the examiner cannot respond to an inquiry without resort to mere speculation, (s)he should so state, and further explain why it is not feasible to provide a medical opinion, 
 
stating what, if any, additional evidence would permit such an opinion to be made.

 
G. A. WASIK
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. M. Lunger, Associate Counsel 

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