Citation Nr: 1509267 Decision Date: 03/03/15 Archive Date: 03/17/15 DOCKET NO. 05-21 334A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen a claim for service connection for tinnitus. 3. Whether new and material evidence has been received to reopen a claim for service connection for a bilateral leg and hip disorder. 4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), claimed as a sleep disorder. 5. Entitlement to a rating in excess of 10 percent for hyperhidrosis of the feet with dyshidrotic dermatitis. REPRESENTATION Appellant represented by: Deanne L. Bonner, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA). A September 2004 rating decision by the Philadelphia, Pennsylvania, Regional Office (RO) continued a 10 percent evaluation for the skin disorder of the feet. The appeal was later transferred to the Cleveland, Ohio RO. Hearings on this matter were held before a Decision Review Officer in December 2005, and before the undersigned Veterans Law Judge sitting at the RO in April 2008. Transcripts of the hearings are of record. In January 2009, the Board denied the Veteran's appeal for an increased rating, and he appealed the decision to the United States Court of Appeals For Veterans Claims (Court). In a May 2011 Memorandum Decision, the Court vacated the January 2009 Board decision, and remanded the case to the Board for further appellate review consistent with the decision. In November 2011, the Board remanded that claim to the RO for additional development. The appeal also comes from a December 2009 rating decision, which denied reopening the claims for service connection for bilateral hearing loss, tinnitus, and a bilateral leg and hip disorder, and which denied entitlement to service connection for a sleep disorder, which was later recharacterized as a claim for an acquired psychiatric disorder, to include PTSD. In December 2013, the Veteran testified at another Decision Review Officer hearing regarding these latter issues; a transcript of the hearing is of record. In his VA Form 9, the Veteran indicated that he did not want a Board hearing on the service connection claims. A subsequent Form 9 filed by his current representative requested a Board hearing, but this form pre-dates his assignment as the Veteran's representative. At this time, there is no request for a Board hearing by the Veteran or his authorized representative and no hearing need be scheduled. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of service connection and an increased rating are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an April 2003 decision the RO denied entitlement to service connection for tinnitus and a bilateral leg and hip disorder, and in a June 2006 decision the RO denied entitlement to service connection for bilateral hearing loss; the Veteran did not appeal these decisions and the decisions became final. 2. Evidence associated with the claims file since the April 2003 and June 2006 RO decisions, which denied entitlement to service connection for tinnitus, a bilateral leg and hip disorder, and bilateral hearing loss, when considered by itself or in connection with evidence previously assembled, is new to the record, relates to an unestablished fact necessary to substantiate the merits of the claims, and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The April 2003 and June 2006 RO decisions are final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 3.104, 20.302, 20.1103 (2014). 2. New and material evidence has been received since the RO's April 2003 and June 2006 decisions, and the claims of service connection for tinnitus, a bilateral leg and hip disorder, and bilateral hearing loss are reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled. Given the favorable decision in this case with respect to reopening the claims for service connection, no further discussion of VCAA compliance is necessary at this time. II. Criteria and Analysis The Veteran seeks service connection for bilateral hearing loss, tinnitus, and a bilateral leg and hip disorder. The claims were previously denied; the last final denial for tinnitus and a bilateral leg and hip disorder was in an April 2003 rating decision, and the last final denial for bilateral hearing loss was in June 2006. The Veteran was notified in writing of the RO's determinations and his appellate rights and did not appeal. Hence, the April 2003 and June 2006 decisions are final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board has compared the recently received medical and lay evidence with the evidence previously assembled and finds that it relates to unestablished facts necessary to substantiate the claims for service connection for bilateral hearing loss, tinnitus, and a bilateral leg and hip disorder. Accordingly, the standards under 3.156(a) have been met and the claims are reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER New and material evidence having been submitted, the claims of entitlement to service connection for bilateral hearing loss, tinnitus, and a bilateral leg and hip disorder are reopened. To this extent, the appeal is allowed. REMAND The Board has reviewed the entire claims file, including electronic records associated with the Veterans Benefits Management System (VBMS) and Virtual VA files, and finds that additional development is required before deciding the claims. Bilateral Hearing Loss and Tinnitus The Veteran's claims file reflects that he has been filing claims for VA compensation benefits since at least 1950. His initial claim for service connection for bilateral hearing loss and tinnitus was received in April 2002. In support of his claim, he submitted a March 2002 private audiology evaluation report. During the evaluation, he reported having gradual hearing difficulty bilaterally and occasional tinnitus. He was wearing a left BTE [behind-the-ear (hearing aid)], which he received about 12 years earlier [approximately 1990] from Easter Seals. He described military noise exposure from demolition, bombs, and gunfire; occupational noise exposure from welding, railroad work, and jackhammers; and recreational noise exposure from hunting. The audiologist opined that hearing loss was as likely as not related to military noise exposure, but did not support the conclusion with any rationale. During a March 2003 VA audiology examination, the Veteran stated that he "became first [sic] aware of his hearing loss about 20 years ago [around 1983]." He also described the onset of tinnitus occurring "about 20 years ago." He described military noise exposure in his duties as a munitions worker, denied occupational noise exposure, and endorsed firing guns for 10 to 12 years after discharge from service during hunting season. Statements made to medical treatment providers and VA examiners reflect that after separation from military service, the Veteran worked in a coal mine for a short period and for the railroad doing repair work until he retired in 1981 after having heart attacks. The Veteran was afforded another VA audiology examination in March 2014 in connection with his current claims. He again reported an onset of difficulty hearing "about 20 years ago," right ear worse than left, but later stated that his hearing difficulties started during military service "when bombs went off around" him and he did not get tested until 20 years ago. He described his military noise exposure and the examiner noted that military noise exposure was conceded. The Veteran also described post-service occupational noise exposure working in a coal mine for four years without use of hearing protection devices, followed by working for the railroad repairing cars with welding and jackhammers from 1950 to 1981. He also identified reactional noise exposure from right-handed target shooting with hearing protection used and from car body work, lawn mowing and about five years of hunting, each without use of hearing protection. Regarding tinnitus, the Veteran indicated that it was about "18 years ago when [he] first noticed that," with the right ear worse than the left. In August 2014, the Veteran's attorney argued that delayed-onset hearing loss and tinnitus can manifest years after an in-service noise exposure and submitted an excerpt from PROGRESSIVE TINNITUS MANAGEMENT: CLINICAL HANDBOOK FOR AUDIOLOGISTS, relating to "delayed-onset tinnitus," which "is thought to occur weeks, months, or even years following some precipitating event (e.g., exposure to loud noise, traumatic brain injury, treatment with ototoxic medications, etc.)." The Veteran's claims file should be provided to a VA audiologist for a supplemental medical opinion. Bilateral Leg and Hip Disorder In August 2014 correspondence, the Veteran's attorney argued that the Veteran's claimed leg and hip disorder is caused or aggravated by his service-connected hyperhidrosis of the feet with dyshidrotic dermatitis. The AOJ should obtain a medical opinion to determine whether the claimed bilateral leg and hip disorder is secondary to the service-connected bilateral foot disability. Psychiatric Disorder In August 2007 correspondence, the Veteran indicated that he had difficulty sleeping due to pain associated with his service-connected bilateral foot disability and a claimed bilateral leg disorder. A December 2009 rating decision denied service connection for a sleep disorder and the Veteran perfected a timely appeal. In December 2013, the Veteran claimed entitlement to service connection for PTSD. The RO recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, previously claimed as a sleep disorder. He was afforded a VA examination in March 2014 and found to have no current mental disorder that met the diagnostic criteria under DSM-V, including PTSD, depression, or adjustment disorder. However, in an undated letter received in August 2014, a VA social worker indicated that the Veteran had been diagnosed with PTSD and was involved in VA mental health therapy. VA treatment records reflect that the VA social worker who wrote the letter on the Veteran's behalf diagnosed him with depression NOS in February 2011 and with PTSD in September 2011. The Veteran should be afforded an additional VA examination to resolve whether he has a current psychiatric disorder related to military service. Hyperhidrosis of the Feet with Dyshidrotic Dermatitis In the May 2011 Memorandum Decision, the Court directed the Board to consider the Veteran's bilateral foot disability under Diagnostic Code 7832 pertaining to hyperhidrosis and under Diagnostic Code 5284 regarding other foot injuries identified as moderate, moderately severe, or severe. Unfortunately, the March 2014 VA examination report was not fully responsive to these rating criteria. The Veteran should be afforded an additional VA examination to evaluate the current severity of his hyperhidrosis of the feet with dyshidrotic dermatitis. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should obtain ongoing treatment records from the Ann Arbor VA Medical Center (VAMC) and related clinics dating since July 2014. 2. The AOJ should ask the Veteran to submit ongoing private podiatry records from G. Miller, D.P.M. dating since October 2013, or to complete and return an Authorization and Consent to Release Information to allow VA to obtain those records on his behalf. 3. Provide the Veteran's entire claims file, including access to the records associated with the Virtual VA and Veterans Benefits Management System (VMBS) electronic files, and a complete copy of this Remand to a VA audiologist to obtain opinions concerning the claimed bilateral hearing loss and tinnitus disabilities. If an examination is deemed necessary to provide the requested opinions, then one should be scheduled. Following a review of the claims file, including the excerpt from PROGRESSIVE TINNITUS MANAGEMENT: CLINICAL HANDBOOK FOR AUDIOLOGISTS received in August 2014, the audiologist should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that hearing loss and tinnitus, first perceived around 1983, are related to the Veteran's military noise exposure between February 1943 and February 1946. A complete rationale for each opinion expressed must be provided. 4. After the outstanding medical records are obtained and associated with the claims file, schedule the Veteran for a VA mental disorders examination with a psychiatrist or psychologist to obtain a supplemental opinion that addresses the discrepancy between the findings of a March 2014 VA examiner and those of treating VA social workers as to the presence of any current psychiatric disorder and likely source. The Veteran's claims file, to include a complete copy of this Remand, must be provided to the examiner designated to examine the Veteran, and the report of examination should note thorough review of the claims file. All necessary special studies or tests, to include psychological testing and evaluation, should be accomplished. The examiner should offer an opinion as to the following: a) Did any psychiatric disability diagnosed by VA treatment providers or on the current examination at least as likely as not (a 50 percent or greater probability) have its onset during active service or is such disability otherwise related to military service? b) Indicate whether it is at least as likely as not (a 50 percent or greater probability) that any current psychiatric disorder was caused or aggravated by the Veteran's service-connected hyperhidrosis of the feet with dyshidrotic dermatitis (rated as 10 percent disabling). c) If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. The examination report should include the complete rationale for all opinions expressed and include discussion of depression and PTSD diagnosed by a VA social worker in February and September 2011, respectively. 5. After the outstanding medical records are obtained and associated with the claims file, schedule the Veteran for a VA general medical and skin diseases examination with a VA internist. The purpose of the examination is to identify the current severity of the service-connected hyperhidrosis of the feet with dyshidrotic dermatitis and to obtain an opinion as to whether the service-connected bilateral foot disability caused or aggravates the claimed bilateral leg and hip disorder. The Veteran's claims file, to include a complete copy of this Remand, must be provided to the examiner designated to examine the Veteran, and the report of examination should note thorough review of the claims file. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. Regarding the hyperhidrosis of the feet with dyshidrotic dermatitis, the examining physician should respond to the following: a) Identify the percent of the entire body and the percent of exposed areas affected and whether corticosteroids or other immunosuppressive drugs are required. b) Indicate whether any manifestations of hyperhidrosis and dyshidrotic dermatitis of the feet equate to a foot injury characterized as moderate, moderately severe, or severe. c) State whether the Veteran's feet would be unable to handle paper or tools because of moisture and whether his hyperhidrosis is unresponsive to therapy. The examining physician should also respond to the following regarding a claimed bilateral leg and hip disorder: a) Indicate whether it is at least as likely as not (a 50 percent or greater probability) that a bilateral leg and hip disorder was caused or aggravated by the Veteran's service-connected hyperhidrosis of the feet with dyshidrotic dermatitis (rated as 10 percent disabling). b) If aggravated, specify the baseline of disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. A complete rationale for each opinion expressed must be provided. 6. After completion of the above, the AOJ should adjudicate the issues of entitlement to service connection for bilateral hearing loss, tinnitus, a bilateral leg and hip disorder, and an acquired psychiatric disorder, and entitlement to a rating in excess of 10 percent for hyperhidrosis of the feet with dyshidrotic dermatitis. If the benefits sought on appeal remain denied, the AOJ must furnish a supplemental statement of the case (SSOC) before the claims file is returned to the Board, if otherwise in order. No action is required of the Veteran until notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in denial of the claim. 38 C.F.R. § 3.655 (2014). The appellant has the right to submit additional evidence and argument on the 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 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs