Citation Nr: 1334044	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  08-29 832	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a right ankle disorder.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for tinnitus.

4.  Entitlement to service connection for a right index finger disorder.

5.  Entitlement to service connection for a left ankle disorder.

6.  Entitlement to service connection for a headache disorder, to include migraines.

7.  Entitlement to service connection for a back disorder.

8.  Entitlement to an initial compensable disability rating for hemorrhoids.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

D. Whitehead, Counsel


INTRODUCTION

The Veteran served on active duty from July 1995 to July 2001, and from December 2002 to December 2003.  This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Wichita, Kansas (RO).

The issues of service connection for right ankle, left ankle, headaches, and back disorders and the claim for an increased rating for hemorrhoids are remanded to the RO via the Appeals Management Center in Washington, DC.


FINDINGS OF FACT

1.  In an unappealed April 2002 rating decision, the RO denied the claim for entitlement to service connection for a right ankle disorder.

2.  Evidence received since the April 2002 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a right ankle disorder.

3.  The medical evidence does not show a bilateral hearing loss disability for VA purposes.

4.  The Veteran's tinnitus is related to his active duty service.

5.  The evidence of record does not show that a right index finger disorder that is related to his active duty service.


CONCLUSIONS OF LAW

1.  New and material evidence has been received to reopen the claim for service connection for a right ankle disorder.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013).

2.  A hearing loss disability was not incurred in the Veteran's active duty service, nor may it be presumed to have been so incurred.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).

3.  Tinnitus was incurred in active military service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).

4.  A right index finger disorder was not incurred in the Veteran's active duty service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duty to Notify and Assist

VA has a duty to notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Given the favorable disposition of the new and material evidence claim and the claim for service connection for tinnitus, the Board finds that all notification and development actions needed to fairly adjudicate the claims have been accomplished.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).  

The Board finds that VA's duty to notify the Veteran what information or evidence is needed in order to substantiate the claims of entitlement to service connection for bilateral hearing loss and a right index finger was satisfied by a letter sent to the Veteran in February 2007.  This letter addressed all of the notice elements with regards to the Veteran's claims and was provided prior to the initial adjudication of the case.  Nothing more is required.

The duty to assist with regard to the claims of entitlement to service connection for bilateral hearing loss and a right index finger has also been met in this case.  All identified post-military medical records have been obtained and associated with the file.  The available service treatment records are in the claims file.  Not all of the Veteran's service treatment records from his second period of active service have been obtained.  In the October 2010 remand, the Board directed the RO to attempt to obtain the Veteran's service treatment records for his period of service from December 2002 to December 2003.  In January 2011, the RO made a formal finding of its inability to obtain his service treatment records.  The Veteran was notified of this finding in a January 2011 letter.  Stegall v. West, 11 Vet. App. 268 (1998).  

The Veteran was afforded a VA examination with respect to the hearing loss claim in September 2007.  38 C.F.R. § 3.159(c)(4).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The September 2007 VA examination and medical opinion are adequate, as they are predicated on a full reading of the service treatment records and VA medical records in the Veteran's claims file.  The examiner's assessment and opinion considers all of the pertinent evidence of record and the statements of the Veteran and are supported by the other evidence of record.  Moreover, the Veteran has neither advanced an argument that the examination was deficient in any respect, nor that he was prejudiced thereby.  Id.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the hearing loss claim has been met. 38 C.F.R. § 3.159(c)(4).

Although a VA examination was not provided in conjunction with the Veteran's service connection claim  for a right index finger disorder, the evidence of record does not warrant one.  See 38 C.F.R. § 3.159(c)(4).  VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease.  Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In the present case, there is nothing in the record, other than the Veteran's own lay statements, that he has a right index finger disorder that is etiologically related to his military service.  While his statements are competent evidence of finger pain and symptomatology, his statements are not competent evidence of a diagnosis or etiology of a disorder.  The record is silent for a diagnosed right index finger disorder during the pendency of the current appeal.  See Cromley v. Brown, 7 Vet. App. 376, 379 (1995); see also Waters v. Shinseki, 601 F.3d 1274, 1279 (Fed. Cir. 2010) (finding that the Veteran's conclusory lay statement is insufficient to trigger VA's duty to provide an examination with an opinion).  As such, VA is not required to provide a VA examination in conjunction with the instant claim.

Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F3d. 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

New and Material Evidence Claim

Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(c).  However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.  38 U.S.C.A. § 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).

Although the RO determined in the October 2007 rating decision that new and material evidence had been submitted to reopen the Veteran's claim, the Board must determine on its own whether new and material evidence has been submitted to reopen this claim.  See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).

In an unappealed April 2002 rating decision, the RO denied the claim for service connection for a right ankle disorder because there was no clinical evidence at that time of a diagnosed right ankle disorder.  In January 2007, the Veteran filed the claim to reopen the issue of entitlement to service connection for a right ankle disorder. 

Evidence associated with the claims file since the April 2002 rating decision includes the Veteran's VA and private treatment records that document his report of ongoing ankle pain.  A January 2009 VA treatment record shows the Veteran's report of pain, redness, and swelling of his ankle, along with pain in other joints.  The physical assessment revealed a diagnosis of arthralgia.  A June 2011 VA treatment record also documents the Veteran's report of right ankle pain that was unresolved and shows a diagnosis of ankle arthralgia.

The VA treatment records showing a diagnosis of right ankle arthralgia is new and material.  In this regard, the Board notes that this medical evidence directly addresses the basis of the last final denial, namely the lack of medical evidence indicating a diagnosed right ankle disorder.  The medical evidence is not cumulative or redundant of the evidence previously of record.  Moreover, the medical evidence is sufficient to raise a reasonable possibility of substantiating the claim.  Evans v. Brown, 9 Vet. App. 273 (1996).  Accordingly, the claim of entitlement to service connection for a right ankle disorder is reopened.

Legal Criteria for Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1110.  Service connection may also 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.  38 C.F.R. § 3.303(d).  Service connection for certain chronic diseases, to include sensorineural hearing loss, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  

To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).


For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection.  38 C.F.R. § 3.385.  "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent."  38 C.F.R. § 3.385.

Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below.  See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).

Bilateral Hearing Loss

The Veteran seeks entitlement to service connection for bilateral hearing loss.  He attributes his claimed hearing loss to in-service noise exposure from weapons fire and tank noise.  The Veteran essentially claims that the evidence currently of record shows that he currently has hearing loss, even if it is not considered "significant."  Thus, he claims service connection is warranted for this disability.

The Veteran's DD 214 reflects the Veteran's service in the U.S. Army and lists his military occupational specialties as an armor crewman and an intelligence analyst.

A September 1994 military enlistment report of medical examination shows that the clinical evaluation of the Veteran's ears was normal.  On the authorized audiological evaluation in September 1994, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
0
0
0
LEFT
10
5
0
0
0

The Veteran's hearing was also assessed in November 1995, at which time he was noted to have been routinely exposed to hazardous noise.  The audiological evaluation revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
10
5
5
LEFT
15
15
15
15
30

An October 1996 annual audiological evaluation revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5
0
5
LEFT
20
10
10
10
20

The Veteran underwent an annual audiological examination in November 1997, at which time pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
5
0
15
LEFT
15
10
10
10
20

A annual audiological evaluation in November 1998, revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
10
5
5
5
LEFT
20
15
15
15
15

In June 1999, the Veteran underwent another annual audiological examination.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
5
5
5
5
LEFT
15
5
10
10
10

A March 2001 report of medical assessment associated with the Veteran's separation from his first period of active duty, documents his report of exposure to loud noise that he believed affected his hearing.  He expressed his belief that his hearing had worsened over time after exposure to loud noises at the gunnery ranges, qualification ranges, and during the normal operation of tanks.  The March 2001 audiological examination revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
5
0
0
LEFT
15
5
5
5
10

On the authorized audiological evaluation in December 2002, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
10
10
10
5
LEFT
10
5
10
10
20

A November 2003 post-deployment health assessment reflects the Veteran's report of exposure to constant noise from running computers and from headphones "blaring" news and Intel reports.

The available audiometric test results do not show that the hearing levels for either ear meet the criteria for a hearing loss disability under VA regulations at any time during the Veteran's active duty service.  See 38 C.F.R. § 3.385.

The Veteran underwent a VA examination in September 2007, at which time he reported having difficulty hearing people during normal activities.  He stated that he experienced noise exposure during service from tank fire, artillery fire, Bradley fire, small arms fire, headphones that streamed Intel reports, and SINGARS radios.  He also reported experiencing head/ear trauma during a unreported incident when he was next to a tank and did not have on a helmet.  The Veteran stated that he was employed as a state highway patrolman and that he did some recreational shooting, during which he used high tech audio hearing protection devices.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5
5
20
LEFT
10
10
15
15
30

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear.  The examiner provided a diagnosis of normal hearing sensitivity in the right ear and left ear hearing loss that was not disabling for VA purposes.  38 C.F.R. § 3.385.   

Based on the evidence of record, the Board finds that service connection for bilateral hearing loss is not warranted.  Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In this case, there is no audiological evidence dated in service or after the Veteran's separation from the military showing that he has a bilateral hearing disability for VA purposes.  38 C.F.R. § 3.385.  In the absence of proof of a present disability there can be no valid claim.  See Brammer, 3 Vet. App. at 225; see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

For all the foregoing reasons, the claim of entitlement to service connection for a bilateral hearing loss disability must be denied.  The preponderance of the evidence in this case is against the claim and therefore the benefit-of-the-doubt rule is not for application.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Tinnitus

The Veteran asserts that he currently experiences tinnitus due to noise exposure during his military service.  He attributes his tinnitus to exposure to loud noise from weapons firing and tanks during his active duty service.  As previously noted, the Veteran's DD 214 reflects his service as an armor crewman and as an intelligence analyst.

A March 2001 report of medical assessment shows the Veteran's report of exposure to loud noises that he believed affected his hearing.  At that time, he also reported experiencing ear, nose, or throat trouble and that his belief that his hearing had worsened over time.  A November 2003 post-deployment health assessment further shows the Veteran's report of exposure to constant noise from computers and the use of headphones to receive news and Intel reports.  He also reported experiencing ringing of the ears.

A September 2007 VA audiology examination report includes the Veteran's report of bilateral, recurrent tinnitus that began during his military service.  The Veteran stated his belief that his tinnitus was due to noise from tank engines.  Following a clinical examination, the examiner rendered a diagnosis of recurrent, bilateral tinnitus.  The examiner opined that the Veteran's tinnitus was "less likely as not" caused by or a result of acoustic trauma during service.  As the rationale for this opinion, the examiner noted that the March 2001 separation examination showed normal hearing and highlighted that the claims file was negative for any evidence of tinnitus.  The examiner also noted that audiometric records from the Veteran's second period of service were not available.

Although the only medical opinion addressing the etiology of his tinnitus weighs against the claim, the September 2007 examiner's opinion is of limited probative value.  While the examiner indicated that the evidence of record had been reviewed and the Veteran was interviewed, the examiner's opinion did not adequately discuss the Veteran's lay statements as to his noise exposure in service and his complaints of tinnitus since that time.  Instead, the examiner relied primarily on the fact that the normal hearing was shown upon separation from his first period of active service.  But see 38 C.F.R. § 3.303(d) (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).  The examiner's conclusion that the claims file was "negative" for evidence of tinnitus does not give adequate consideration to the Veteran's competent lay statements of experiencing tinnitus since his military service.  Accordingly, the Board assigns limited weight to the examiner's opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.).
 
With regard to the Veteran's lay assertions, the Veteran's statements are competent evidence to describe the symptoms that he experienced in service, and to describe a continuity of symptoms since service.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describing symptoms later diagnosed by a medical professional).  Tinnitus is a type of disability that lends itself to lay observation.  See Charles v. Principi, 16 Vet. App. 370, 374 (2004) (finding that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation).

The Board also finds the Veteran's statements credible to establish in-service onset and continuity of symptomatology since separation.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board cannot determine lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence).  Therefore, as the probative, competent, and credible evidence of record reflects in-service noise exposure, a current diagnosis of tinnitus, and the onset of tinnitus in service and continuity of symptomatology since military service, service connection for tinnitus is warranted.

Right Index Finger Disorder

The Veteran claims that he currently has a right index finger disorder that was incurred during his military service.  He asserts that he injured his right finger while on active duty and claims to have experienced occasional symptoms since that time.  

Service treatment records show that the Veteran received treatment in April 1996 after he reportedly smashed his right index finger in between the head rest and the hatch of his vehicle.  The physical examination revealed an assessment of painful, swollen, right index finger, rule out fracture.  There is no indication that the Veteran received follow up treatment for this injury.  On a March 2001 report of medical history, the Veteran reported that his hands became sore, especially with changes in the weather.  He reported experiencing swollen, stiff, and painful joints and numbness or tingling in his hands or feet on a November 2003 post-deployment health assessment.  

During a December 2001 VA general medical examination, the Veteran stated that he developed "sore hands" during his military service, particularly in his right index finger.  The Veteran reported this condition was unpredictable and he noted was possibly weather-related.  An x-ray examination of both hands was negative.

Subsequent VA and private treatment records do not show evidence of any right index finger symptomatology until January 2009.  The January 2009 VA treatment record documents the Veteran's report of experiencing stiffness in his right index finger after working outside in very cold temperatures.  He treated his symptoms with over-the-counter pain medication.  The Veteran reported that his symptoms resolved after two days and that he did not have any symptoms at that time.

While the Veteran's statements are competent evidence as to events in service and after service, and to describe the extent of any symptomatology, there is no evidence that he possesses the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as medical diagnosis or medical causation.  Cromley v. Brown, 7 Vet. App. 376, 379 (1995).  The Veteran's statements are not competent evidence to diagnose a right index finger disorder or to link the claimed disorder to his military service.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

Based on the foregoing, the Board finds that service connection for a right index finger disorder is not warranted.  There is no objective evidence of record dated during the pendency of the appeal showing that the Veteran currently has a diagnosed right index finger disorder.  See Mclain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim); see also Brammer, 3 Vet. App. at 225 ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of present disability there can be no valid claim.").  With no evidence of a current disability, service connection for a right index finger disorder is not warranted and the claim must be denied.  


For all the foregoing reasons, the claim for service connection for a right index finger must be denied.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49 at 53-56.


ORDER

New and material evidence having been received, the claim of entitlement to service connection for a right ankle disorder is reopened and to that extent only, the appeal is granted.

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is granted.

Service connection for a right index finger disorder is denied.


REMAND

Right Ankle Disorder

Having reopened the claim for service connection for a right ankle disorder, the Board finds that additional development is warranted.  See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  The Veteran's service treatment records show that he was treated in March 2000 for right ankle pain and Achilles tendonitis.  As discussed above, the record now includes evidence of a right ankle diagnosis.  This medical evidence, coupled with the Veteran's competent lay statements regarding a continuity of right ankle symptomatology since service, has triggered VA's duty to assist by affording the Veteran a VA examination with respect to his claim.  38 U.S.C.A. § 5013A; 38 C.F.R. § 3.159; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992).  Accordingly, the claim is remanded for the Veteran to be afforded an appropriate examination to determine whether any right ankle disorder found is related to his military service.  

Left Ankle Disorder

Additionally, a remand is needed for the Veteran's left ankle disorder claim.  He asserts that he currently has a left ankle disorder that had its onset during his military service.  His service treatment records show that he sought treatment in January 1996 after experiencing left shin and left ankle pain for three months; at that time, he received a diagnosis of rule out lateral malleolus ligament/shin splints.  A subsequent March 2001 report of medical history includes the Veteran's report of ankle pain and soreness of the ankles with changes in the weather.  Post-service VA treatment records show a diagnosis of osteochondritis dissecans lesion of the left proximal medial talus in October 2011.    

To date, the Veteran has not been afforded a VA examination to assess the nature and etiology of the claimed left ankle disorder.  Given the evidence of in-service left ankle symptomatology, a currently diagnosed left ankle disorder, and the Veteran's competent lay statements, the Veteran must be afforded a VA examination to determine the nature and etiology of the claimed left ankle disorder.  38 U.S.C.A. § 5103A(d)(2), See Wells v. Principi, 326 F.3d 1381(Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

Headache Disorder

Additional development is also warranted for the Veteran's claim for service connection for a headache disorder.  The Board remanded this claim in October 2010 to afford the Veteran a VA examination and obtain a medical opinion regarding the etiology of the claimed headaches.  The claims file reflects that the Veteran underwent a VA examination for his headaches in November 2010.  The examination resulted in a diagnosis of subjective headaches, which the examiner opined were "less likely as not" caused by or a result of the Veteran's military service.  As rationale for this opinion, the examiner stated that there was no evidence of migraine headache or a headache disorder before, during, or post military.  This opinion, however, does not give adequate consideration to the service treatment records documenting the Veteran's report of headaches in November 2003 prior to his discharge, or his competent lay statements that he has continued to experience headaches since his military service.  Given this deficiency, the Board finds that this VA examination is inadequate for entering a final decision.  See Barr, 21 Vet. App. at 312 (holding that if VA provides a Veteran with an examination in a service connection claim, the examination must be adequate).

Back Disorder

A remand is also warranted for the back disorder claim in order to ensure compliance with the October 2010 remand.  In the October 2010 remand, the Board directed the RO to schedule the Veteran for a VA examination for his claimed back disorder and obtain a medical opinion regarding whether the back disorder is related to the Veteran's military service.  However, the RO did not afford the Veteran a VA examination as required by the Board's remand, but rather only obtained a medical opinion report based on that examiner's review of the claims file.  Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure substantial compliance.  Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  Thus, the claim is remanded so that the Veteran may be afforded a VA examination with respect to his claim.

Hemorrhoids

Finally, the claims file reflects that the RO granted service connection for hemorrhoids in a June 2011 rating decision, and a noncompensable rating was assigned for the disability effective January 2007.  In July 2011, the Veteran submitted a notice of disagreement with respect to the noncompensable rating assigned for the hemorrhoids disability.  However, the Veteran has not been issued a statement of the case for this issue.  Under these circumstances, the Board has no discretion and must remand this matter for issuance of an statement of the case.  See Manlicon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is remanded for the following action:

1.  A statement of the case and notification of the Veteran's appellate rights on the issue of entitlement to service connection for hemorrhoids, is necessary.  38 C.F.R. § 19.26 (2013).  The Veteran and his representative are reminded that to vest the Board with jurisdiction over this issue, a timely substantive appeal to the rating decision denying this claim must be filed.  38 C.F.R. § 20.202 (2013).  If the Veteran perfects the appeal as to this issue, the case must be returned to the Board for appellate review.  

2.  The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims.  Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources.  When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received.  All attempts to secure this evidence must be documented in the claims file by the RO.  If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence.  The Veteran and his representative must then be given an opportunity to respond.  

3.  After completion of the above, the Veteran must be afforded a VA examination by an appropriate examiner to determine whether the any right ankle and left ankle disorders are related to his military service.  The examiner must review the claims file and all electronic records and must specify in the report that these records have been reviewed.  The examiner must specify the dates encompassed by the electronic records, if any, that are reviewed.  All pertinent symptomatology and findings must be reported in detail.  Any indicated diagnostic tests and studies must be accomplished and reported in detail.

The examiner must identify all right ankle and left ankle disorders found on examination.  Based on the clinical evaluation, the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether any current or previously diagnosed right and left ankle disorder is related to the Veteran's military service or to any incident therein.  All opinions expressed must be include a complete rationale.  If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would be speculation.  The examiner must indicate whether there was any further need for information or testing necessary to make a determination.  Additionally, the examiner must indicate whether the opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.  The report must be typed.

4.  After obtaining any outstanding treatment records, the Veteran must be afforded an examination by an appropriate examiner to determine whether any back disorder is related to his military service.  The examiner must review the claims file and all electronic records, and must specify in the report that these records were reviewed.  The examiner must specify the dates encompassed by the electronic records, if any, that are reviewed.  All pertinent symptomatology and findings must be reported in detail.  Any indicated diagnostic tests and studies must be accomplished and reported in detail.

The examiner must render a diagnosis of all current disorders of the spine.  Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any currently or previously diagnosed back disorder is related to the Veteran's active duty service.  

The examiner must address all back disorders diagnosed during the pendency of the appeal, to include the post-service diagnosis of thoracic scoliosis.  In so doing, the examiner must comment whether the diagnosed scoliosis constitutes a congenital defect or a disease.  If the examiner finds that the Veteran's scoliosis is a congenital defect, the examiner must determine if there is an additional disability due to disease or injury superimposed upon such defect during service.

If the examiner finds that the Veteran's scoliosis is a congenital disease, the examiner must indicate whether the disease was aggravated by his military service beyond the natural progression.  Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms.

If scoliosis is not congenital in nature, the examiner must state whether the scoliosis is related to the Veteran's military service, to include any in-service reports of back symptomatology or incidents therein.

A complete rationale for all opinions must be provided.  If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation.  The examiner must indicate whether there was any further need for information or testing necessary to make a determination.  Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.  The report prepared must be typed.

5.  After obtaining any outstanding treatment records, the Veteran must be afforded an examination by an appropriate examiner to determine whether any headache disorder is related to his military service.  The examiner must review the claims file and all electronic records and must specify in the report that these records were reviewed.  The examiner must specify the dates encompassed by the electronic records, if any, that are reviewed.  All pertinent symptomatology and findings must be reported in detail.  Any indicated diagnostic tests and studies must be accomplished and reported in detail.

Based on the clinical evaluation, the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether any headache disorder currently or previously diagnosed is related to the Veteran's military service or any incident therein, to include in-service reports of headaches.

All opinions express must be include a complete rationale.  If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would be speculation.  The examiner must indicate whether there was any further need for information or testing necessary to make a determination.  Additionally, the examiner must indicate whether the opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.  The report must be typed.
  
6.  The Veteran must be notified that it is his responsibility to report for all examinations and to cooperate in the development of his claims.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2013).  In the event that the Veteran does not report for any examination, documentation must be obtained that 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.

7.  The VA examination reports must be reviewed to ensure that they are in complete compliance with the directives of this remand.  If any report is deficient in any manner, implement corrective procedures at once.

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

No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).



______________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs