Citation Nr: 1334481	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  08-08 271	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for degenerative joint disease of the left knee, status post arthroscopy.

2.  Entitlement to service connection for severe/frequent itching, reaction to inoculation.

3.  Entitlement to service connection for a bilateral foot disability.

4.  Entitlement to service connection for bilateral hearing loss disability.

5.  Entitlement to service connection for tinnitus.

6.  Entitlement to service connection for a sinus disability.




REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

E. Joyner, Counsel


INTRODUCTION

The Veteran served on active duty from May 1983 to May 1986 and from February 11 to July 5, 2003.  He also has additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Army National Guard.

This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

A February 2007 rating decision denied the Veteran's claims of entitlement to service connection for severe and frequent itching, reaction to inoculation, and a bilateral foot disability.  A June 2009 rating decision denied service connection for bilateral hearing loss and tinnitus and rating decisions in March 2010 and September 2010 confirmed and continued the previous denials of service connection for bilateral hearing loss and tinnitus.  The September 2010 rating decision also reopened and denied the claim of entitlement to service connection for degenerative joint disease of the left knee.  An August 2011 rating decision denied service connection for a sinus disability.  

The Veteran requested a Board hearing in his March 2008 and October 2012 VA Forms 9.  Although a letter was sent to the Veteran in March 2013 informing him that his Board hearing had been scheduled for April 26, 2013, the Veteran failed to appear for the hearing without explanation.  He has not requested that his hearing be rescheduled.  Therefore, the Board may proceed with the appeal.

The issues of entitlement to service connection severe/frequent itching, reaction to inoculation; a bilateral foot condition; bilateral hearing loss; and a sinus disability 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.  Service connection for degenerative joint disease of the left knee was denied in an unappealed March 2009 Board decision.

2.  The evidence received since the March 2009 Board decision includes evidence that is either cumulative nor redundant of the evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim, and is insufficient to establish a reasonable possibility of substantiating the claim.

3.  It is at least as likely as not that the Veteran has tinnitus which is etiologically related to acoustic trauma during service.


CONCLUSIONS OF LAW

1.  The March 2009 Board decision, which denied service connection for degenerative joint disease of the left knee is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 20.302 (2012). 

2.  The evidence received subsequent to the March 2009 rating decision denying service connection for degenerative joint disease of the left knee is not new and material, and the claim for service connection for service connection for degenerative joint disease of the left knee is not reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 

3.  Resolving reasonable doubt in the Veteran's favor, service connection for tinnitus is established.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must 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.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  

The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include:  1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  

In this decision, the Board grants entitlement to service connection for tinnitus which constitutes a complete grant of the Veteran's claim.  Therefore, no discussion of VA's duty to notify or assist is necessary with respect to this claim.

The case of Kent v. Nicholson, 20 Vet. App. 1 (2006), requires that, prior to the adjudication of claims to reopen service connection claims, the appellant be given notice of the elements of service connection, the elements of new and material evidence, and the reasons for the prior denial.  A May 2010 VCAA letter provided notice of the elements of service connection and new and material evidence, and the reason for the prior denial of the claim of entitlement to service connection for degenerative joint disease of the left knee, post operative.  Thus, the criteria of Kent are satisfied.  See Kent, 20 Vet. App. at 9.  Moreover, the notice requirements were provided before the initial adjudication of the claim in September 2010, and therefore there was no defect with regard to the timing of the notice as to these requirements.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Accordingly, further development is not indicated.  

The Board also concludes that VA's duty to assist has been satisfied.  The Veteran's service treatment records, various service personnel records, VA examination reports and identified private medical records are in the claims file.  The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim to reopen. 

In attempts to reopen previously denied claims for service connection, the duty to assist does not include a provision for a medical examination or opinion, unless new and material evidence has been secured.  See 38 C.F.R. § 3.159 (c)(4)(iii).  Nonetheless, the RO provided the Veteran with an examination in April 2011.  The Court has held that the Board is not required to reopen a previously denied claim solely because the appellant was afforded a VA examination in connection with his petition to reopen.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007).  Furthermore, the Court has also held that, where the Board has denied reopening, the adequacy of an examination provided by the RO, despite no obligation to do so, is not a viable issue on appeal.  See id., at 461.  As discussed below, the Board concludes that new and material evidence has not been received on this claim.  As such, no duty to assist examination provisions could have been violated.  See id.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).

Legal Analysis

      New and Material Evidence

In general, rating decisions that are not timely appealed are final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012).  When a rating decision issued by the RO is affirmed by the Board, that determination is considered final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1104 (2012).

If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed.  See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 

The question of whether new and material evidence has been received to reopen each claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995).  If the Board finds that no such evidence has been offered, this is where the Board's analysis must end; hence, what the RO may have determined in this regard is irrelevant.  Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. 

"New" evidence is defined as evidence not previously submitted to agency decision-makers.  "Material" evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

As set forth in 38 C.F.R. § 3.156(b) (2013), when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  Under Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011), the Federal Circuit found that § 3.156(b) requires that VA evaluate submissions received during the relevant period to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim.  See also Buie v. Shinseki, 24 Vet. App. 242 (2010).

In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material.  If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  See Smith v. West, 12 Vet. App. 312, 314 (1999).  If it is determined that new and material evidence has been submitted, the claim must be reopened.  The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied.  See Elkins v. West, 12 Vet. App. 209 (1999).

In Shade v. Shinseki, 24 Vet. App. 110, 120 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the phrase 'raises a reasonable possibility of substantiating the claim' as "enabling rather than precluding reopening."  The Court held that 38 C.F.R. § 3.159(c)(4)(iii) does not require new and material evidence as to each previously unproven element of a claim.  See Shade, 24 Vet. App. at 120.

The appellant contends that he is entitled to service connection for degenerative joint disease of the left knee, status post arthroscopy.  For the reasons that follow, the Board finds that new and material evidence has not been received to reopen the Veteran's claim. 

Historically, the Board notes that in a September 2004 rating decision, the RO denied service connection for degenerative joint disease of the left knee, post operative.  The Veteran appealed the decision and in March 2009, the Board denied service connection for degenerative joint disease of the left knee, post operative on the basis that degenerative joint disease of the left knee, post operative, was not found to have been incurred in or aggravated by service.  The Veteran did not appeal this decision; therefore, it became final.  38 C.F.R. § 20.1104.

There is no indication that any relevant service department records have been associated with the record since the March 2009 Board decision such that 38 C.F.R. § 3.156(c) would apply.  Accordingly, reconsideration of the Veteran's claim under 38 C.F.R. § 3.156(c) is not warranted.  Moreover, as the last final prior denial in this case is a Board decision, the provisions of 38 C.F.R. § 3.156(b) do not apply.

The evidence of record at the time of the March 2009 Board decisions includes the Veteran's service treatment records from all periods of service, to include periods of ACDUTRA and INACDUTRA, some service personnel records showing dates of ACDUTRA and INACDUTRA, private treatment records, and VA examination reports.

The evidence added to the record since the March 2009 rating decision denying the Veteran's claim for service connection for degenerative joint disease of the left knee, post operative, includes the Veteran's statements, private treatment records, and an April 2011 VA examination report.  

This newly submitted evidence is new in that it was not of record at the time of the March 2009 denial of the claim; however, none of the newly submitted evidence is material because it does not raise a reasonable possibility of substantiating the claim.  Specifically, the private treatment records do not reflect any treatment for the left knee.  The April 2011 VA examination report reflects a diagnosis of left knee degenerative joint disease status post arthroscopic surgery, which the examiner determined is less likely than not caused by or related to military service.  The examiner noted that this condition pre-existed the Veteran's second period of deployment and was not aggravated beyond its natural progression.  The Veteran's statements indicate that his correct service dates were not considered and he submitted a copy of his annual statement of service dates.  The Board notes that this annual statement was previously of record at the time of the March 2009 Board decision and the information contained therein does not reflect that the Veteran's left knee degenerative joint disease was incurred or aggravated during a period of active service.  

With regard to the Veteran's contentions about the VA examination being inadequate/the VA examiner not using the correct dates, this issue was addressed previously.  Notably, the Court has held that the Board is not required to reopen a previously denied claim solely because the appellant was afforded a VA examination in connection with his petition to reopen.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007).  Furthermore, the Court has also held that, where the Board has denied reopening, the adequacy of an examination provided by the RO, despite no obligation to do so, is not a viable issue on appeal.  See id., at 461.  The Board does not find that the April 2011 VA examination is new and material evidence.  In this regard, it does not raise a reasonable possibility of substantiating the claim because it does not suggest that the Veteran's current degenerative joint disease of the left knee is etiologically related to or aggravated by active service. 

In sum, the evidence added to the record subsequent to the last final denial is either duplicative or cumulative of records previously in the claims file, and the remainder of the evidence does not indicate that the Veteran's left knee degenerative joint disease is related to or aggravated by active service.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim to reopen must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


      Service Connection 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).  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).

Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  The Veteran is not diagnosed with a disability recognized as chronic pursuant to 38 C.F.R. § 3.309(a).

The Board is to consider all lay and medical evidence as it pertains to the issues.  38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). 

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for tinnitus.  In this regard, the Veteran contends that he has tinnitus related to noise exposure during service.  Specifically, the Veteran contends that he was exposed to loud noise during service from aircraft, artillery, heavy equipment, weapons, diesel engines, explosives, and all terrain vehicles.  The Board notes that the Veteran is considered competent to relate a history of noise exposure during service.  See 38 C.F.R. § 3.159(a)(2).  Moreover, his service records show that he served as a combat engineer, cannon crewmember, gunner, ammunition specialist, and ammunition sergeant.  As such, noise exposure during service is conceded.

With regard to whether the Veteran has a current disability, the Veteran has reported that he experiences tinnitus.  Notably, the January 2009 VA examination report reflects the Veteran's current complaint of intermittent tinnitus described as a high pitched ringing, which he stated began over five years earlier.  It was noted that the Veteran had a military history of noise exposure with hearing protective devices worn, as well as a civilian history of noise exposure as a deputy sheriff and correctional officer, also with hearing protective devices worn.  The examiner found that due to inconsistent hearing test responses, the hearing test was invalid and no opinion could be provided.  

Additionally, at the February 2010 VA examination, the Veteran reported ringing in the ears, which he stated began about 10 or 15 years earlier after shooting artillery.  He reported that the tinnitus is constant.  The examiner found that the Veteran's feelings of pressure and popping sensations are commonly associated with sinus problems that can affect the middle ear systems through the Eustachian tubes and are not considered tinnitus.  However, the examiner did not provide any opinion regarding the Veteran's complaint of a constant humming in his ears.  

An April 2011 VA examination report notes a chief complaint of constant bilateral ringing tinnitus, which began in mid 1984.  The Veteran rated the loudness of the tinnitus as 9/10.  The examiner indicated that service treatment records are silent for a complaint or diagnosis of tinnitus and a post-deployment examination from June 2003 reflects that the Veteran denied ringing of the ears.  The examiner noted that tinnitus is a subjective finding most commonly associated with factors such as noise exposure, hearing loss, and/or hearing threshold shift, and that it can have immediate or delayed onset with regard to these factors.  The examiner noted that the Veteran reported a history of noise exposure working in law enforcement since 1989.  Because the Veteran has both military and civilian occupational noise exposure history within the same general time frame, the examiner stated that an opinion regarding whether the tinnitus is due to military noise exposure cannot be rendered without resort to mere speculation.  

A December 2009 private treatment record from Ear Lab Audiology and Hearing Aid Center notes a diagnosis of tinnitus.  

An undated buddy statement from E.T., who served with the Veteran between 1995 and 2004, indicates that the Veteran spoke about how he could never adjust to the sound of howitzers firing.  The letter also states that the Veteran would get jumpy when the gun was fired and that he spoke about how his ears were ringing.

Based upon the evidence of record, and in giving the Veteran the benefit of the doubt, the Board finds that the Veteran has tinnitus.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that a veteran is competent to provide lay evidence of his experiencing ringing in the ears since service). 

Although the evidence of record does not include any etiologic opinion that relates the Veteran's current tinnitus to service, the Veteran essentially indicates that he first experienced tinnitus in service (and he provided a credible buddy statement regarding his in-service complaints) and that it has been constant ever since.  Thus, viewing the evidence in a light most favorable to the Veteran, the positive evidence of record consists of the fact that he currently suffers from tinnitus and has reported that it began when he was in service.  38 C.F.R. §§ 3.102, 3.303; Davidson v. Shinseki, 581 F.3d. 1313, 1315 (Fed. Cir. 2009) (noting that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness). 

The Board acknowledges that the Veteran denied ringing in the ears in June 2003 and that he reported instances of post-service occupational noise exposure.  However, the denial of ringing in the ears in June 2003 is not inconsistent with the Veteran's January 2009 statement that his tinnitus began over five years earlier.  Moreover, the Board cannot reasonably disassociate the nature or severity of the Veteran's in-service noise exposure from complaints of tinnitus as a consequence of other post-service experiences.  In light of the foregoing, there is an approximate balance of the positive and negative evidence on the issue of whether the Veteran's currently diagnosed tinnitus is related to service.  Resolving all reasonable doubt in the Veteran's favor, entitlement to service connection for tinnitus is warranted.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 


ORDER

New and material evidence not having been received, reopening of the claim of entitlement to service connection for degenerative joint disease of the left knee, status post arthroscopy, is denied.

Entitlement to service connection for tinnitus is granted.


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Veteran claims that he is entitled to service connection for severe/frequent itching, reaction to inoculation.  A review of the service treatment records shows that in March 2003 the Veteran was seen for routine follow-up for a smallpox vaccination.  It was noted that six days after the Veteran's vaccination, he had local itching, local rash, redness, bump, blister, and itchiness all over.  

VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case.  38 U.S.C.A. §5103A (West 2002); 38 C.F.R. §3.159(c)(4) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

Although the Veteran does not have a current diagnosis of severe/frequent itching, he is competent to describe such symptoms.  Davidson v. Shinseki, 581 F.3d. 1313, 1315 (Fed. Cir. 2009) (noting that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness).  In his June 2006 claim, the Veteran indicated that he has encountered severe and frequent itching since this in-service vaccination.  Under these circumstances, the Board finds that a remand is required in order to schedule the Veteran for a VA examination.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

The Veteran underwent VA examinations pursuant to his claims of entitlement to service connection for a bilateral foot disability, bilateral hearing loss, and a sinus disability.  For the reasons that follow, the Board has determined that the VA examinations are inadequate for adjudication purposes.

The Veteran underwent three VA examinations for the purposes of determining the nature and etiology of any bilateral hearing loss; however, none of the examination reports contain any opinion regarding etiology.  Notably, the January 2009 and February 2010 VA examination reports indicate that tests results were invalid due to inconsistent responses and the April 2011 VA examination indicates that the Veteran does not meet VA's established criteria for a diagnosis of a bilateral hearing loss disability.  

However, the Veteran submitted private audiograms dated in October 2009 and December 2009 which, based upon puretone thresholds, reflect a diagnosis of bilateral hearing loss for VA purposes.  As such, the Veteran has a diagnosis of bilateral hearing loss for VA purposes during the period of the claim.  Thus the Board finds that a remand is required in order to obtain an opinion regarding whether the Veteran's bilateral hearing loss is etiologically related to service.  See McLain v. Nicholson, 21 Vet. App. 319 (2007)(holding that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication).

Although the Veteran's VA hearing test results were previously deemed invalid or did not meet VA's criteria for a diagnosis of bilateral hearing loss disability, because the claim is being remanded for an etiological opinion and because the most recent VA audiology examination was conducted over two years ago, the Board finds that a new audiology examination should be conducted on remand.

The Veteran underwent a VA examination in April 2011 pursuant to his claim for service connection for a bilateral foot disability.  The examination report indicates that the Veteran last sought treatment for his bilateral foot disability in 2005.  The examination report further indicates that the Veteran stated that his foot disability began in 1983.  He stated that after finishing a road march, he took his shoes off and saw callouses.  He indicated that he was sent to orthopedics, was told his feet were flat, and received inserts.  The examiner diagnosed the Veteran with bilateral hallux valgus deformity of the first metatarsal phalangeal joint space per X-ray studies and pes planus, developmental.  However, the examiner only provided an opinion regarding the pes planus, indicating that it was not caused by, a result of, or worsened beyond natural progression due to military service.  The examiner stated that medical records verify the pre-existing condition.  

A review of the service treatment records reflects that the March 1983 service enlistment examination reflects normal examination of the feet.  The enlistment report of medical history reflects that the Veteran denied foot trouble.  Service treatment records dated in October 1983, August 1985 and September 1985 reflect foot complaints.  Callouses and bunions were found.  The February 1989 periodic service examination notes normal feet.  However, the February 1989 periodic service report of medical history notes that the Veteran endorsed foot trouble, which was described by the authoring health care provider as hyperkeratotic areas without limitations.  An April 1993 retention examination reflects normal examination of the feet and the accompanying report of medical history reflects that the Veteran denied foot trouble.  A May 1998 periodic service examination reflects normal evaluation of the feet.  A September 1998 report of medical history reflects that the Veteran denied foot trouble.  The February 2003 report of medical history indicates that the Veteran denied foot trouble.  The June 2003 report of medical history reflects that the Veteran reported foot trouble.  This was described as corns and bunions.

A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record.  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Here, not only does the VA examiner not provide an opinion as to the etiology of the diagnosis of bilateral hallux valgus deformity of the first metatarsal phalangeal joint space, the opinion regarding the pes planus diagnosis appears to be based upon an inaccurate factual premise.  Therefore, a remand is required for medical opinions regarding all foot diagnoses, which are based upon an accurate review of the Veteran's documented medical history and which contain a complete rationale.

With regard to the Veteran's claim of entitlement to service connection for a sinus disability, the Veteran underwent a VA examination in July 2012.  The report of that examination indicates that although the Veteran had acute seasonal allergic sinusitis in January 2012, he does not have a diagnosis of chronic sinusitis.  The examiner also found that despite having a diagnosis of seasonal allergic rhinitis, it is not related to service because it was diagnosed nine years post-service.  Unfortunately, in rendering this opinion, the examiner only took into account one episode of sinusitis in service (from June 1984) and the January 2012 post-service episode of sinusitis.  Importantly, the examiner did not address the June 1985 service treatment record which reflects a diagnosis of rhinitis, the April 1993 report of medical history which reflects diagnoses of sinusitis and hay fever, worse in spring and fall, the February 2003 report of medical history which notes the Veteran's complaint of asthma or breathing problems related to pollen, or the Veteran's statements that he has had continuous problems with his sinuses ever since service.  Therefore, the rationale that the allergic rhinitis was diagnosed nine years after service is incorrect and a remand for a new opinion is required.

Finally, the Board notes that the July 2012 VA examiner referred to VA treatment records showing a diagnosis of acute sinusitis in January 2012.  Additionally, the Board notes that in a March 2010 statement, the Veteran indicated that his VA outpatient treatment records regarding his bilateral hearing loss had not been considered.  The record does not reflect that any VA treatment records are contained in the Veteran's paper claims file or his Virtual claims file.  As such, a remand is required in order to obtain this January 2012 treatment record, as well as any other outstanding VA treatment records.  38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to specifically include the treatment he indicated he last received for his feet from 2005, as well as any additional private treatment received from Ear Lab Audiology and Hearing Aid Center and Providence Occupational Health.  Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources.  Regardless of the Veteran's response, the RO must request all available VA treatment records.  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. 
 
2.  Schedule the Veteran for VA examination in order to determine the nature and etiology of any current severe/frequent itching, reaction to inoculation.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions.  

The examiner should state whether the Veteran has a disability manifested by severe/frequent itching, and if so, whether it is at least as likely as not (50 percent or better probability) that such disability is causally or etiologically related to his military service.  

The examiner must discuss the March 2003 complaints of local redness, bump, reddish blister, local itching, local rash, and itchiness all over, found six days after the Veteran received a smallpox vaccination, as well as the Veteran's contentions of having had ongoing itchiness since this incident in service. 

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.

3.  Return the claims file to the April 2011 examiner, or suitable substitute, in order to obtain an opinion regarding the etiology of the diagnosed pes planus and bilateral hallux valgus deformity of the first metatarsal phalangeal joint space.  The examiner must review the claims file in its entirety, and must indicate in the examination report that such review has been accomplished.

The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's pes planus and bilateral hallux valgus deformity of the first metatarsal phalangeal joint space are causally or etiologically related to his military service, or whether each disability was aggravated (permanently increased in severity beyond the natural progression of the disorder) during the Veteran's second period of active service.  

The examiner must discuss the following service treatment records:  the March 1983 service enlistment examination, which reflects normal examination of the feet; the March 1983 enlistment report of medical history, which reflects that the Veteran denied foot trouble; the service treatment records dated in October 1983, August 1985 and September 1985, which reflect findings of callouses and bunions; the February 1989 periodic service examination, which notes normal feet; the February 1989 periodic service report of medical history, which notes that the Veteran endorsed foot trouble (noted to be hyperkeratotic areas without limitations); the April 1993 retention examination report, which reflects normal examination of the feet and the accompanying report of medical history which reflects that the Veteran denied foot trouble; the May 1998 periodic service examination which reflects normal evaluation of the feet; the September 1998 report of medical history which reflects that the Veteran denied foot trouble; the February 2003 report of medical history which reflects that the Veteran denied foot trouble; and the June 2003 report of medical history which reflects that the Veteran reported foot trouble, described as corns and bunions.

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.

4.  Schedule the Veteran for a VA audiology examination in order to determine the nature and etiology of the Veteran's bilateral hearing loss disability.  The examiner must review the claims file in its entirety, and must indicate in the examination report that such review has been accomplished.

Appropriate testing, including a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test, should be conducted.  The results of puretone threshold testing for 500, 1000, 2000, 3000, and 4000 Hertz and speech recognition testing using the Maryland CNC test are to be reported.

The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed hearing loss, to include the bilateral hearing loss diagnosed by a private audiologist in October 2009 (Providence Occupational Health) and December 2009 (Ear Lab Audiology and Hearing Aid Center), had its clinical onset during active service or is related to any in-service disease, event, or injury, including noise exposure. 

In providing this opinion, the examiner should acknowledge the Veteran's exposure to acoustic trauma in service and any statements regarding a continuity of symptomatology since service. 

The examiner also should note that the fact that there was no diagnosis of hearing loss in service is not, by itself, a sufficient reason to deny service connection for hearing loss.

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.

5.  Return the claims file to the July 2012 VA examiner, or suitable substitute, in order to obtain an opinion regarding the etiology of the Veteran's sinusitis and rhinitis.  The examiner must review the claims file in its entirety, and must indicate in the examination report that such review has been accomplished.

The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's rhinitis and sinusitis are causally or etiologically related to his military service, or whether each disability was aggravated (permanently increased in severity beyond the natural progression of the disorder) during the Veteran's second period of active service.  

The examiner must discuss the June 1985 service treatment record which reflects a diagnosis of rhinitis, the April 1993 report of medical history which reflects diagnoses of sinusitis and hay fever, worse in spring and fall, the February 2003 report of medical history which reflects the Veteran's complaints of asthma or breathing problems related to pollen, and the Veteran's complaints of ongoing problems since service.  

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.

6.  The Veteran must be advised of the importance of reporting to any scheduled VA examinations and of the possible adverse consequences, to include the denial of his claims, of failing, without good cause, to so report.  See 38 C.F.R. § 3.655 (2013).  A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examinations must be included in the claims folder and must reflect that it was sent to his last known address of record.  If he fails to report to the examinations, the claims folder must indicate whether the notification letter was returned as undeliverable.

7.  When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence.  If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 

The appellant 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).

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 Supp. 2012).



______________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs