Citation Nr: 1330472 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 11-21 371 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for a rotator cuff disability of the right shoulder with bone spur. 4. Entitlement to service connection for a post-operative cervical strain with spinal stenosis. 5. Entitlement to service connection for allergic rhinitis. 6. Entitlement to service connection for a skin disability manifested by urticarial wheals. 7. Entitlement to service connection for loss of tooth No. 19, for purposes of receiving compensation and/or VA outpatient dental treatment. 8. Entitlement to service connection for a low back disability, to include as secondary to service-connected degenerative joint disease with hallux valgus deformity of the feet. 9. Entitlement to service connection for degenerative joint disease of the right knee, to include as secondary to service-connected degenerative joint disease with hallux valgus deformity of the feet. 10. Entitlement to service connection for residuals of left knee arthroscopy, to include as secondary to service-connected degenerative joint disease with hallux valgus deformity of the feet. 11. Entitlement to service connection for disability of the ankles, to include as secondary to service-connected degenerative joint disease with hallux valgus deformity of the feet. 12. Entitlement to a higher initial disability rating for degenerative joint disease with hallux valgus deformity of the feet, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from an August 2010 decision of the RO that, in pertinent part, granted service connection for degenerative joint disease with hallux valgus deformity of the feet evaluated as 10 percent disabling effective January 25, 2010; and denied service connection for a low back disability, for residuals of left knee arthroscopy, for disability of the ankles, for a rotator cuff disability of the right shoulder with bone spur, for a cervical strain with spinal stenosis, for allergic rhinitis, for a skin disability manifested by urticarial wheals, and for loss of tooth No. 19. The Veteran timely appealed for a higher initial rating, and appealed each denial of service connection. These matters also came to the Board on appeal from a September 2010 rating decision that denied service connection for hearing loss; and from a July 2011 that denied service connection for degenerative joint disease of the right knee and for tinnitus. The Veteran timely appealed. In September 2011, the Veteran testified during a hearing before RO personnel. In November 2012, the Board remanded the matters to afford the Veteran an opportunity for a hearing before a Veterans Law Judge. In April 2013, the Veteran testified during a videoconference hearing before a former (acting) Veterans Law Judge. Following the hearing, the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO. The complete transcript of the hearing is of record. In July 2013, the Board duly notified the Veteran that the Board no longer employed the (acting) Veterans Law Judge that conducted the April 2013 Board hearing and that he had the right to another Board hearing. Later that same month, the Veteran indicated that he did not want an additional hearing. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that the Veteran continues to work. While the Veteran has indicated that he is unable to perform some work activities due to his service-connected disabilities, he has not alleged that his service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment. The matter is not raised by the record, and the Board finds it unnecessary to remand the matter for further action. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. The issues of a higher initial disability rating for degenerative joint disease with hallux valgus deformity of the feet; and for service connection for a low back disability, for degenerative joint disease of the right knee, for residuals of left knee arthroscopy, for disability of the ankles, for bilateral hearing loss, for tinnitus, for a rotator cuff disability of the right shoulder with bone spur, and for post-operative cervical strain with spinal stenosis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran's in-service dental treatment was due to causes other than a combat wound or trauma; he already received one-time VA outpatient dental treatment after his service discharge. 2. The Veteran does not have a compensable service-connected dental condition; nor is there evidence that the Veteran's loss of tooth No. 19 aggravates a service-connected disability. He was not a prisoner of war, and is not in receipt of benefits under 38 U.S.C.A. chapters 17 or 31. CONCLUSIONS OF LAW The claim of entitlement to service connection for loss of tooth No. 19, for purposes of receiving compensation and/or VA outpatient dental treatment, is without legal merit. 38 U.S.C.A. §§ 1110, 1712 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.381, 17.161 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through June 2011 letters, the RO notified the Veteran of elements of service connection and the evidence needed to establish each element. These documents served to provide notice of the information and evidence needed to substantiate the claims. VA's letters notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claims, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In each letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claim decided on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran specifically waived RO consideration of the additional evidence submitted following the April 2013 hearing; hence, no re-adjudication followed and no supplemental statement of the case (SSOC) was issued. There is no indication that any additional action is needed to comply with the duty to assist the Veteran. VA has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claims decided on appeal, reports of which are of record and are adequate. The opinions expressed therein are predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Here, during the hearing, the acting Veterans Law Judge sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked, or was outstanding that might substantiate the claims. It was suggested that any evidence tending to show current disability linked to active service, would be helpful in substantiating the claims for service connection. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2); and no prejudice has been identified in the conduct of the Board hearing. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). A. Loss of Tooth No. 19 VA will consider certain dental conditions service-connected for treatment purposes if they are shown in service after a period of 180 days. See 38 C.F.R. § 3.381 (2012). Treatable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service-connected solely for purposes of establishing eligibility for outpatient dental treatment, as provided in 38 C.F.R. § 17.161. To be eligible for outpatient dental treatment, at VA expense, a Veteran must satisfy one of the eligibility categories listed in 38 U.S.C.A. § 1712 and 38 C.F.R. § 17.161. To establish entitlement to service connection for a tooth, the Veteran must have sustained a combat wound or other in-service trauma. See 38 U.S.C.A. § 1712(c) (West 2002 & Supp. 2012); 38 C.F.R. § 3.381(b). The significance of finding a dental condition is due to in-service trauma is that a Veteran will be eligible for VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment. 38 C.F.R. § 17.161(b), (c). Mere dental treatment or cracking a tooth while eating is not sufficient to establish eligibility for treatment. Similarly, broken bridgework due to injury is not dental trauma because it must be the injury of a natural tooth. Further, for purposes of determining whether a Veteran has treatment eligibility, the term "service trauma" does not include the intended effects of treatment provided during the Veteran's military service. VAOPGCPREC 5- 97 (1997), 63 Fed. Reg. 15,556 (1997). In this case, the Veteran does not allege, nor does the evidence suggest, entitlement on a Class II (a) basis, which provides treatment for Veterans who have a service-connected noncompensable dental condition or disability which has been adjudicated as resulting from combat wounds or other service trauma. See 38 U.S.C.A. § 1712(a)(1)(C); 38 C.F.R. § 17.161(c). Service dental records show that the Veteran was treated for caries on various occasions. Service records do not suggest any dental trauma to teeth; nor has the Veteran reported the loss of any teeth in service. The overall evidence does not suggest that the Veteran's in-service dental treatment was associated with trauma. In this case, the Veteran's loss of tooth No. 19 occurred after his discharge from active service. Indeed, it appears that the Veteran already received the one-time VA outpatient dental treatment after his service discharge. In April 2013, the Veteran testified that he had not been told he had any problems with tooth No. 19 in active service; and that following active service, he knew he had limited time in order to have his teeth checked by VA. The Veteran testified that tooth No. 19 "just kind of broke off one day," so he went to VA and had the tooth surgically removed. The Veteran testified that VA also put fillings in his other teeth and put in a bridge. The Board notes that a claim for service connection for a dental condition also raises a claim for outpatient dental treatment. Hays v. Brown, 5 Vet. App. 302 (1993). A dental condition related to service that is due to causes other than a combat wound or trauma is typically subject to the limitations of treatment indicated as reasonably necessary for the one-time correction and timely application after service. 38 C.F.R. § 17.161(b). In this regard, the Veteran, whose discharge from active service was before October 1, 1981, had one year from the date of his service discharge to apply for dental benefits for any noncompensable service-connected dental condition. Because treatment is shown to have been already received, the Veteran is ineligible for Class II dental treatment for a dental condition. Therefore, service connection for loss of tooth No. 19 for purposes of establishing eligibility for VA dental treatment must be denied. The Veteran is also ineligible for the other classes of dental treatment set out in 38 C.F.R. § 17.161. The Veteran has not reported, nor does the record show a dental condition that could be compensable. See 38 C.F.R. § 4.150 (2012). In this regard, dental examination in July 2010 revealed no limitation in range of motion of the temporomandibular joints in vertical incisal opening; and no limitation in lateral excursions, with no limitation of normal function. The examiner noted that Tooth No. 19 had been replaced by a fixed partial denture from tooth No. 18 to tooth No. 20, which satisfactorily restored masticatory function and esthetics. Therefore, the Veteran would not be eligible for Class I dental treatment. Since he does not have, as mentioned above, a noncompensable service-connected dental disorder resulting from service trauma or combat wounds, the Veteran is ineligible for Class II(a) dental care. He was not a prisoner of war, and is therefore ineligible for Class II(b) or II(c) dental care. He has not made a prior application for dental benefits for replacement of missing teeth which were lost in active service, and is not eligible for Class II(R) (Retroactive) treatment. The evidence does not show that the Veteran has a dental condition that aggravates a service-connected disability; nor does he currently have a service-connected disability rated as 100 percent disabling, or a total rating for compensation based on individual unemployability. Therefore, he is not eligible for Class IV dental treatment. He is not participating in a rehabilitation program under 38 U.S.C.A. chapter 31, and he has not reported being admitted or otherwise receiving care under 38 U.S.C.A. chapter 17. Since he does not meet any of the criteria for eligibility under 38 C.F.R. § 17.161, he cannot be authorized outpatient dental treatment for loss of tooth No. 19. Under these circumstances, the Board must conclude that the Veteran has not presented a legally sufficient claim for the VA benefit sought, and that the claim must be denied on that basis. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for purposes of receiving compensation and/or VA outpatient dental treatment for loss of tooth No. 19 is denied. REMAND Records The Veteran testified in April 2013 that he has been receiving treatment from a podiatrist at the Hanger Clinic in Omaha, Nebraska, since February 2013 for his bilateral foot disability and for other disabilities involving his low back, knees, and ankles. VA must specifically seek the Veteran's authorization for release of these records from February 2013 to the present date. The Veteran also testified that he has continued to receive chiropractic care for relief of pain for his low back disability, for his knee disabilities, for his ankle disabilities, and for a rotator cuff disability of the right shoulder with bone spur. VA should specifically seek the Veteran's authorization for release of these treatment records from March 2009 to the present date. In addition, recent VA treatment records should be obtained. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record). Degenerative Joint Disease with Hallux Valgus Deformity of the Feet The Veteran contends that his service-connected degenerative joint disease with hallux valgus deformity of the feet is more severe than currently rated, and warrants a higher initial disability rating. Records show that the Veteran was last afforded a VA examination to evaluate the severity of his service-connected degenerative joint disease with hallux valgus deformity of the feet in February 2012. At that time, there was evidence of mild or moderate symptoms due to the hallux valgus condition of both feet; X-ray evidence of traumatic arthritis of the metatarsophalangeal joint of each foot; and a lack of evidence of incapacitating exacerbations. Since then, the Veteran has described a worsening of the disability. In April 2013, the Veteran testified that he had constant pain in both his feet on a daily basis; and that he had flare-ups of pain and a burning sensation at times when he started to walk, which went up into his ankles and knees. He took pain medications for relief, and tried to elevate his feet and apply ice packs. His feet also swelled more, and he has had additional treatment in the form of prescribed prosthetics. The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). Under these circumstances, VA cannot rate the service-connected degenerative joint disease with hallux valgus deformity of the feet without further medical clarification. Hence, the Veteran is entitled to a new VA examination. See, e.g., Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Low Back Disability, Knee Disabilities, and Ankle Disabilities With regard to the Veteran's claims for secondary service connection, the Veteran is invited to submit competent medical opinions that his low back disability, knee disabilities, and ankle disabilities are due to or aggravated by a service-connected disability. Hearing Loss and Tinnitus The Veteran contends that service connection for a bilateral hearing loss disability and for tinnitus is warranted on the basis that he was exposed to excessive noise during basic training and advanced infantry training, from "all kinds of different weaponry" and machine guns. His DD Form 214 reflects the Veteran's primary specialty as a wireman in the field, and indicates that he served overseas in Europe. While testifying in April 2013, the Veteran described "shooting rounds above you" and "bunkers blowing up around you" and "using grenades," all without hearing protection. The Veteran also testified that he worked in an office setting after his discharge from active service, and that he was not exposed to loud noises. He reported that later when he was around equipment and hazardous materials at his job, he wore ear plugs and also underwent hearing tests. The Veteran indicated that he continues to have a hearing problem, and that he has suffered from tinnitus since his training in active service. He is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). Furthermore, his statements are consistent with the circumstances of his service, and the Board finds that there is credible evidence of in-service noise exposure. Reports of hearing tests, received in January 2011, from the Veteran's employer revealed that audiograms conducted in June 1994 and in May 2002 were normal. VA audiometric test results in July 2010 reveal that the Veteran has hearing loss of both ears recognized as a disability for VA purposes. Evidence of a current hearing loss disability-i.e., one meeting the requirements of 38 C.F.R. § 3.385-and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In July 2010, a VA audiologist opined that the Veteran's hearing loss and tinnitus were not due to active duty noise exposure. The audiologist reasoned that the Veteran had "no rateable hearing loss" when separated from active duty in 1971; and assumed that if no hearing loss was found, then the current complaint of tinnitus was most likely due to some other etiology. It appears that the VA audiologist did not consider the Veteran's lay testimony of onset of both hearing loss and tinnitus in active service. The Board also notes that, because audiometric testing results at the time of the Veteran's separation from active service in March 1971 are zeroes for each decibel level, it is unclear whether audiometric testing had been performed. The Court has held that applicable regulations do not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service, if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). The Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d), which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Given the likelihood that the Veteran had significant noise exposure from all kinds of weaponry, including grenades and machine guns, in basic and advance training, and his credible statements of experiencing symptoms of hearing loss and tinnitus since service, an examination is needed to determine whether the Veteran's current bilateral hearing loss and tinnitus either had their onset during service or are related to his active service-to specifically include excessive noise exposure from all kinds of weaponry, including grenades and machine guns, in basic and advanced training; or if either disability is otherwise related to his active service. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2012). Right Shoulder Rotator Cuff Disability with Bone Spur The Veteran contends that service connection for a rotator cuff disability of the right shoulder with bone spur is warranted on the basis that his right shoulder was injured in active service when he returned a vehicle to the motor pool, and banged his right shoulder on the moving vehicle as he exited. He also experienced pain in his right shoulder at times from firing weapons. The Veteran did not seek treatment in active service, and reported that he continued to have pain and sometimes took medication to do activities. Here, the current medical evidence establishes that the Veteran continues to undergo chiropractic care for a right shoulder disability. Although his service treatment records are absent complaints or treatment for right shoulder pain or injury, the Veteran is a credible and reliable historian with regard to the observable symptoms he experienced both in service and after service, to include experiencing painful motion of the right shoulder. The question therefore remains whether the evidence indicates that there may be an association between his current diagnosis and service. See, e.g., McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). MRI scans conducted of the Veteran's right shoulder in September 2008 reveal severe degenerative acromioclavicular joint disease with impingement, subacromial/subdeltoid bursitis, severe rotator cuff tendinopathy, and biceps tenosynovitis. While the Veteran underwent a VA examination in July 2010, the examiner at that time did not identify any current right shoulder disability; and did not provide any rationale for the adverse medical opinion offered. Under these circumstances, the Board finds that an addendum from the July 2012 examiner (or from a suitable substitute) is needed to determine whether the Veteran has a current right shoulder disability that either had its onset during service or is related to his active service. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2012). Cervical Strain with Spinal Stenosis The Veteran contends that service connection for post-operative cervical strain with spinal stenosis is warranted on the basis that his neck sustained trauma from the "amount of physical training" that he went through in preparation for possible deployment to Vietnam; and from the stress and strain from carrying heavy weights in a backpack for about two months. He testified that sometimes he went to the dispensary and was given some pain medication. VA is required to seek a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability; establishes that the Veteran suffered an event, injury or disease in service; and indicates that the current disability may be associated with the in-service event, injury or disease. 38 C.F.R. § 3.159(c)(4) (2012). Here, private treatment records show that the Veteran was involved in a motor vehicle accident in December 1996. X-rays at the time revealed normal alignment of the vertebral bodies of the cervical spine. Fairly significant cervical stenosis was noted in May 1997, with relatively mild symptoms. Records show that the Veteran continued to have symptoms of right arm pain and hand numbness, and that he underwent complete C4-C5 and C5-C6 anterior diskectomies in October 2006, with insertion of a metal plate. Again, the Veteran's service treatment records are absent complaints or treatment for a cervical strain with spinal stenosis. The Veteran's testimony regarding neck pains from carrying heavy weights during advance training and from lots of physical training in active service is considered both competent and credible. He is also competent to describe his current symptoms, following the surgical procedure. This is sufficient to trigger the duty to assist in obtaining a medical examination and opinion as to the etiology of any post-operative residuals associated with a cervical strain with spinal stenosis. Moreover, VA should seek a medical opinion regarding whether any identified post-operative residuals of a cervical strain with spinal stenosis are due to or aggravated by the service-connected degenerative joint disease with hallux valgus deformity of the feet. Hence, the Board cannot resolve this matter without further medical clarification. Skin Disability Manifested by Urticarial Wheals, and Allergic Rhinitis The Veteran contends that service connection for a skin disability manifested by urticarial wheals and for allergic rhinitis is warranted on the basis that each of the disabilities had their onset in active service. He is competent to describe his symptoms both in-service and post-service. Medical records document treatment for a skin disability manifested by urticarial wheals and for allergic rhinitis in 1988 and in 1991. The Veteran's treating physician at the time indicated that the Veteran continued to have episodic pruritus with occasional urticarial wheals, and ongoing mild symptoms of allergic rhinitis, which was perennial. The treating physician suggested that the Veteran's mild allergic rhinitis and intermittent urticaria had at least a demographic component. In 2011, the treating physician reported that the Veteran had not been seen for treatment since 1993. Service treatment records show no findings of a skin disability manifested by urticarial wheals, or show complaints or treatment for allergic rhinitis. In April 2013, the Veteran testified that he started have problems with allergic rhinitis shortly after his separation from active service. He testified that he went to a clinic, and that he started taking medications and a nasal spray as needed to dry up his drainage problems. He testified that he later went to a clinic where his son was a patient, and was told that his condition was long-standing. The Veteran also testified that he started noticing problems of urticarial wheals in 1970, but that he did not seek treatment in active service and that he used over-the-counter medications. His Veteran's testimony, as corroborated by his treating physician, is deemed credible. Under these circumstances, the Board finds that an examination is needed to determine whether the Veteran has a current skin disability manifested by urticarial wheals; and whether the Veteran has current allergic rhinitis-either of which had their onset during service, or is related to his active service. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2012). While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary contact information and authorization from the Veteran, please request records that pertain to bilateral foot care and treatment for related disabilities from the Hanger Clinic in Omaha, Nebraska, from February 2013 to the present date; and associate them with the Veteran's claims file (physical or electronic). 2. Contact the Veteran and ask him to submit competent medical opinions that his low back disability, his knee disabilities, and his ankle disabilities are due to or aggravated by a service-connected disability. After obtaining any necessary contact information and authorization from the Veteran, please request treatment records that pertain to chiropractic care for relief of pain for low back disability, for knee disabilities, for ankle disabilities, and for a rotator cuff disability of the right shoulder with bone spur, from March 2009 to the present date; and associate them with the Veteran's claims file (physical or electronic). 3. Obtain recent VA treatment records for degenerative joint disease with hallux valgus deformity of the feet, for a low back disability, for knee disabilities, for ankle disabilities, for bilateral hearing loss, for tinnitus, for a rotator cuff disability of the right shoulder with bone spur, for a skin disability manifested by urticarial wheals, and for allergic rhinitis-dated from March 2012 to the present date; and associate them with the Veteran's claims file (physical or electronic). 4. If, after making reasonable efforts to obtain records identified by the Veteran; and if VA is unable to secure such records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claims; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 5. Afford the Veteran a VA examination, for evaluation of the service-connected degenerative joint disease with hallux valgus deformity of the feet. The entire claims file, to include a complete copy of this REMAND, and any pertinent records contained in any electronic claims file, must be made available to the examiner, and the report of the examination should note review of the file. The examiner should identify all current symptoms associated with the Veteran's degenerative joint disease with hallux valgus deformity of the feet. The examiner should specify whether there is associated atrophy, or weakness, and express an opinion as to the severity of the disability. Specifically, the examiner should report the ranges of motion of the first metatarsophalangeal joint of each foot, or whether any segment is ankylosed. The examiner should express an opinion as to whether there is severe painful motion or weakness associated with the Veteran's service-connected degenerative joint disease with hallux valgus deformity of the feet (versus other causes). The examiner should opine as to whether the great toe of each foot exhibits weakened movement, excess fatigability, or incoordination; and whether the service-connected disability significantly limits functional ability during flare-ups or when the great toe of each foot is used repeatedly over a period of time. The examiner should describe any incapacitating exacerbations. These specific findings are needed to rate the Veteran's disability in accordance with the rating schedule. It is therefore important that the examiner furnish the requested information. 6. Afford the Veteran a VA audiology examination to identify all current disability underlying the Veteran's current complaints of bilateral hearing loss and tinnitus; and to obtain information as to the current nature and likely etiology of any current hearing loss of either ear and any current tinnitus. All appropriate tests and studies (to include audiometric testing) should be accomplished, and all clinical findings should be reported in detail. Based on the examination and review of the record, the examiner should offer opinions as to whether it is at least as likely as not (50 percent probability or more) that any such hearing loss disability of either ear and any tinnitus had its onset in service, or is the result of disease or injury incurred or aggravated during service-to specifically include credible reports of excessive noise exposure from all kinds of weaponry, including grenades and machine guns, in basic and advanced training, as reported by the Veteran. If other causes are more likely, those should be noted. The examiner should reconcile any opinion with the service treatment records and the Veteran's lay testimony. Note that the lack of hearing loss diagnosed in service does not diminish the credibility of the Veteran's testimony that he experienced episodic symptoms of hearing loss and tinnitus in service. The examiner is asked to explain the reasons behind any opinions offered. The examiner is also reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The Veteran's claims file, to include a complete copy of this REMAND, and any pertinent records contained in any electronic claims file, must be made available to the examiner designated to examine the Veteran, and the examination report should note review of the file. 7. The July 2010 VA examination report should be returned to the examiner (or, if that examiner is unavailable, a suitable substitute) for an addendum identifying any current right shoulder disability, and expressing an opinion as to: Whether it is at least as likely as not (50 percent probability or more) that the Veteran's current right shoulder disability is the result of disease or injury incurred or aggravated during service, to specifically include (a) banging the right shoulder while exiting a moving vehicle; (b) firing weapons; or (c) other incidents of active service, as credibly reported by the Veteran. Note that the lack of documented treatment in service does not diminish the credibility of the Veteran's testimony that he experienced episodic symptoms in his shoulder in service. Attention is invited to the September 2008 MRI showing several diagnoses, to include severe degenerative acromioclavicular joint disease with impingement, subacromial/subdeltoid bursitis, severe rotator cuff tendinopathy, and biceps tenosynovitis. The examiner is asked to explain the reasons behind any opinions offered. The examiner is also reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner determines that an opinion cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed disorder, or whether the actual cause is due to multiple potential causes. In other words, simply stating that an opinion cannot be made without resort to mere speculation is not acceptable without a detailed explanation as to why this is so. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The Veteran's claims file, to include a copy of this REMAND, and any pertinent records contained in any electronic claims folder, must be made available to the examiner designated, and the examination report should note review of the file. 8. Schedule the Veteran for a VA examination to determine the nature and etiology of his post-operative cervical strain with spinal stenosis. The claims file, and any pertinent records contained in any electronic claims folder, must be made available and reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Based on the review and physical examination, the examiner is asked to render an opinion as to: (a) Whether it is at least as likely as not that the Veteran's post-operative cervical strain with spinal stenosis is medically related to his service-specifically, to include the physical training and carrying heavy weights for two months in a backpack, and the Veteran's credible complaints of neck problems then, and since then; (b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected degenerative joint disease with hallux valgus deformity of the feet has caused the post-operative cervical strain with spinal stenosis; (c) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected degenerative joint disease with hallux valgus deformity of the feet has aggravated the post-operative cervical strain with spinal stenosis (i.e., whether the post-operative cervical strain with spinal stenosis has permanently worsened beyond the natural progression of the disease due to the service-connected disability). If aggravation is shown, the examiner should specify what permanent, measurable increase in the severity of post-operative cervical strain with spinal stenosis is attributable to the service-connected disability. An explanation of the underlying reasons for any opinions offered must be included. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 9. Afford the Veteran a VA examination to identify all current disability underlying the Veteran's current complaints of a skin disability manifested by urticarial wheals, and of allergic rhinitis; and to determine whether it is at least as likely as not (50 percent probability or more) that any such disability either had its onset in service, or is the result of disease or injury incurred or aggravated during active service-specifically, to include in-service urticarial wheals, and the longstanding history of allergic rhinitis, as reported by the Veteran and noted by the Veteran's treating physician in 1991. For each disability, the examiner should provide a rationale for the opinion. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The Veteran's claims file, to include a complete copy of this REMAND, and any pertinent records contained in any electronic claims folder, must be made available to the examiner designated to examine the Veteran, and the examination report should note review of the file. 10. Thereafter, readjudicate the claims on appeal. If the benefits sought are not fully granted, furnish the Veteran and his representative a supplemental statement of the case (SSOC), and allow the appropriate response time before the claims file is returned to the Board, if otherwise in order. No action is required of the Veteran and his representative until they are notified by VA; however, the Veteran is advised that failure to report for any scheduled examinations may result in the denial of his claims. 38 C.F.R. § 3.655 (2012). The Veteran has the right to submit additional evidence and argument on the matter or 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.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs