Citation Nr: 18160591
Decision Date: 12/28/18	Archive Date: 12/27/18

DOCKET NO. 17-10 551
DATE:	December 28, 2018
ISSUES
1. Entitlement to service connection for bilateral hearing loss (BHL).
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for a back disability.
4. Entitlement to service connection for a bilateral wrist disability.
REMANDED
Entitlement to service connection for BHL is remanded.
Entitlement to service connection for tinnitus is remanded.
Entitlement to service connection for a back disability is remanded.
Entitlement to service connection for a bilateral wrist disability is remanded.
REASONS FOR REMAND
The Veteran served on active duty from August 1995 to December 1997. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.
The Board is of the opinion that additional development is required before the Veteran’s claims on appeal are decided. The Veteran contends that service connection is warranted for the disabilities on appeal as they are related to or had their onset in service.
The Veteran was scheduled for VA-contracted examinations in connection with her claims on July 2011, but she failed to report. However, the Veteran asserts, and the record shows, that she requested that the examinations be rescheduled due to scheduling conflicts that prevented her from being able to attend the examinations. Subsequently, the Veteran was scheduled for a VA examination in connection with her claim for a back disability, as addressed below. However, she was not scheduled for VA examinations in connection with her claims for BHL, tinnitus, and a bilateral wrist disability. As such, the Board finds that the Veteran should be afforded an additional opportunity to undergo VA examinations in connection with her appeal for these issues. The Veteran is hereby notified that it is her responsibility to report for the scheduled examinations and to cooperate in the development of the claims. The consequence for failure to report for a VA examination without good cause for an original claim may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655(2017). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained to show that notice scheduling the examination was sent to her most recent mailing address of record. It must also be indicated whether any notice that was sent was returned as undeliverable.
In regards to the claim for a back disability, the Veteran noted on her October 1997 separation examination that she had recurrent back pain. As noted above, a VA back conditions disability benefits questionnaire was completed in September 2016 in which the examiner diagnosed lumbar strain. The examiner opined 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.  The examiner stated that it was less likely as not that the Veteran's lumbosacral strain was service connected as there were no medical records showing diagnosis or treatment for the lumbosacral strain condition or any related back condition while the Veteran was still in service.
The Board finds that clarification is required from the September 2016 examiner as this opinion appears to be based on absence of treatment. It is symptoms, not treatment, which are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Moreover, upon remand, the examiner is reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).
Finally, the Veteran stated in her February 2017 formal appeal that she was seeing a private chiropractor and indicated that there were outstanding treatment records pertinent to her claims. As such, these records should be sought on remand.
The matters are REMANDED for the following action:
1. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by her as pertinent to her claims, to specifically include any private chiropractic records as indicated above.
If any of these records are found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified as to the unavailability of such records pursuant to 38 C.F.R. § 3.159 (e).
2. After the above development is completed, schedule the Veteran for a VA examination conducted by appropriate health care provider to determine the nature and etiology of her claimed BHL and tinnitus.  
The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination.  All necessary testing should be accomplished, as appropriate. 
The examiner should address the following: Opine whether it is at least as likely as not (50 percent probability or greater) that any BHL or tinnitus diagnosed during the pendency of this appeal, had their onset in service or are otherwise etiologically related to service.
A full and complete rationale for all opinions expressed must be provided. 
If the examiner is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011).
3. Then, schedule the Veteran for a VA examination conducted by appropriate health care provider to determine the nature and etiology of her claimed bilateral wrist disability.  
The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination.  All necessary testing should be accomplished, as appropriate. 
The examiner should address the following: Opine whether it is at least as likely as not (50 percent probability or greater) that any bilateral wrist disability diagnosed during the pendency of this appeal, had its onset in service or is otherwise etiologically related to service.
A full and complete rationale for all opinions expressed must be provided. 
If the examiner is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones, 23 Vet. App. 382.
4. Then, provide access to the electronic claims file to the September 2016 VA examiner, or appropriate substitute if this examiner is not available, to provide an addendum opinion regarding the Veteran’s back disability.  The electronic claims file must be made available to and reviewed by the examiner.  An examination should be performed if deemed necessary by the examiner providing the requested opinion.
Based on review of the files, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s back disability had its onset in or is otherwise related to service, to include the report of back pain in October 1997. In rendering the above opinion, the examiner is advised that the mere absence of in-service evidence of a disability during service is not fatal to a service connection claim. See Ledford, 3 Vet. App. 87, 89. 
5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal.  If any benefit sought on appeal remains denied, furnish the Veteran and her representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response.
 
MICHAEL A. PAPPAS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R.M.K., Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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