Citation Nr: 1335972	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  08-39 919	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  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 lumbar spine disorder.

5.  Entitlement to service connection for a right little finger disorder.

6.  Entitlement to service connection for a right knee disorder.

7.  Entitlement to service connection for a right hip disorder.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America

WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

M. Peters, Associate Counsel


INTRODUCTION

The Veteran had active duty service from August 1956 to August 1958.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the above issues.  The Veteran timely appealed those issues.

The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in September 2012; a transcript of that hearing is associated with the claims file.

This case was initially before the Board in January 2013, when it was remanded for further development.  The issues of service connection for lumbar spine, right hip, right knee and right little finger disorders, as well as bilateral hearing loss and tinnitus, are again addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

A right ankle disability did not have its clinical onset in service and is not otherwise related to active duty; degenerative arthritis of the right ankle was not exhibited within the first post service year. 


CONCLUSION OF LAW

The criteria establishing service connection for a right ankle disorder have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the Veteran was sent a letter in June 2005 that provided information as to what evidence was required to substantiate the claim of service connection for a right ankle disorder and of the division of responsibilities between VA and a claimant in developing an appeal.  Additionally, a March 2006 letter explained what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further development is required with respect to the duty to notify.

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record, including testimony provided at a September 2012 hearing before the undersigned.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim herein decided.  

The claim of service connection for a right ankle disorder was the subject of a January 2013 Board remand order, which included obtaining records from the Hines VA Medical Center since 1991 and obtaining a VA examination and medical opinion.  The Veteran underwent a VA examination in March 2013; the Board has reviewed the medical opinion rendered at that time and finds it adequate for rating purposes, as discussed further below.

With regards to the Hines VA treatment records, the Board notes that treatment records from 1993 to the present have been obtained and associated with the claims file.  The Veteran was informed over the telephone in April 2013 that Hines VA Medical Center did not send any records from 1991 or 1992.  The Veteran reiterated that he did go to that VA Medical Center at that time and that he would forward those records as soon as possible; no further response from him has been received with regards to those treatment records.  In response to further inquiry in May 2013, the VA staff at Hines VA Medical Center responded that all records in their possession had been sent in the previous response.  The Board finds that further attempts to obtain treatment records prior to 1993 from the Hines VA Medical Center would be futile in this case.

Therefore, the Board finds that its remand order has been substantially complied with in this case, and it may proceed to adjudicate upon the merits of this case with respect to the claim herein decided.  See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order).

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Analysis

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  

In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

"[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").  

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). 

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, as opposed to merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b). 

However, 38 C.F.R. § 3.303(b) only applies to the list of chronic diseases/disabilities recognized by VA as being chronic and those chronic diseases/disabilities are listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that 38 C.F.R. § 3.303(b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a)).

Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013). 

Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).

Turning to the evidence, the Veteran asserted in his May 2005 informal claim that he injured his right ankle in service and has had subsequent knee and hip problems ever since; he additionally noted that his right ankle locks.  He further asserted in his December 2008 substantive appeal that he was having trouble walking due to his back and leg pain.  

More specifically, in his September 2012 hearing, the Veteran averred that he injured his right ankle in January 1957; he received treatment at that time for a swollen right ankle.  The Veteran stated that he was supposed to be on light duty for 3 days, but did not receive any light duty.  He stated that he was evaluated and returned to duty in boot camp, including guard duty which involved standing on his swollen ankle.  He reported that it was still swollen today and has "been bad ever since."  He also stated that he was treated for swelling and pain in his right ankle with his private doctor, Dr. T., but that those records were unavailable.

Review of the Veteran's service treatment records reveals that his right ankle was normal on entrance into service in August 1956.  In January 1957, the Veteran was shown to be treated for a right ankle injury he sustained while running an obstacle course.  He was diagnosed with a right ankle lateral ligament strain; it was noted that there was soft tissue swelling and tenderness; three days later, his right ankle was shown to be slightly swollen but asymptomatic; he was sent to light duty for 3 days, though the next line indicates that he was fit for duty and discharged straight to duty status on the same day.  An x-ray taken in January 1957 reveals no evidence of a fracture or dislocation of the right ankle.  No subsequent treatment for the Veteran's right ankle is shown in the service treatment records, and his right ankle is shown to be normal on separation from service in August 1958.

The Board has reviewed the private treatment records from the Mayo Clinic; no treatment for a right ankle disorder is shown in those records, which appear to be solely for bilateral hip problems.  

The Board has also reviewed the Veteran's VA treatment records since 1993, which are of record and associated with the Virtual VA efolder.  Generally, there is no specific treatment noted in those records for any right ankle disorder.  However, the Veteran is shown to have complaints of ongoing bilateral ankle pain and swelling in a July 2008 VA treatment record.  Those records appear to associate the Veteran's ankle pain and swelling at that time to an acute flare-up of his gout condition.

The Veteran underwent a VA examination of his right ankle in March 2013.  At that time, the VA examiner diagnosed the Veteran with degenerative arthritis of the right ankle, as of the date of that examination.  During that examination, the Veteran reported that he sustained multiple injuries from a trip and fall climbing a mountain while stationed in San Diego in 1956, for which he was hospitalized for 2 days.  He did not recall a diagnosis for a right ankle disability at that time, but was treated with an Ace wrap and returned to full duty in 2 or 3 days without further evaluation or treatment for his right ankle disorder.  

During the examination, the Veteran reported having intermittent, daily ankle pain without any precipitating events.  He treated his pain with oxycodone, which he used for multiple musculoskeletal disorders.  He also reported chronic swelling and intermittent stiffness of his ankle; he denied any recurrent sprains, recent injuries or surgeries of his right ankle.  The examiner noted that x-rays of his ankles revealed mild degenerative changes bilaterally, with bony ossicles medial malleolus area bilaterally more prominent on the left.  The final diagnosis was bilateral degenerative arthritis of the ankles, which accounted for his pain.  It was noted that the bony ossicles adjacent to the medial malleolus are more prominent on the left than the right.  "The ossicles may or may not represent old trauma."  It was further noted that the degenerative arthritis would also account for the impingement syndrome shown on evaluation, and that the vascular swelling on examination was of the entire lower leg, and not solely confined to the ankles.  

The examiner concluded that the Veteran's right ankle disability was less likely than not related to service.  He noted that the Veteran was able to complete his enlistment without any additional evaluation or treatment for an ankle condition.  He continued: 

An Ace wrap for 2 days and no use of crutches followed by return to normal duty after 2-3 days following injury would suggest a minor injury at most.  This would be an unlikely cause of degenerative arthritis in this particular situation and [he] has similar changes, if not more severe on the left.  In spite of lay statements supporting continuity of symptoms (statements that are purely subjective), there is little to support the contention that [his] present ankle condition-which is bilateral and documented on x-ray-is service incurred/related.

Based on the foregoing evidence, the Board finds that service connection for a right ankle disorder is not warranted.  First, the Board concedes that the Veteran is currently diagnosed with degenerative arthritis of the right ankle, and that he suffered a right ankle strain in service in January 1957.  The first two elements of service connection have thus been met in this case.

With regards to the Veteran's statements of continuity of symptomatology, the Board does acknowledge that the Veteran indicated that he has had pain and swelling in his right ankle since military service.  These are competent statements.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue).

The Veteran is competent to claim that he had right ankle pain since the incident in service.  It is conceivable that the symptoms existed and went unreported after the incident in service and unnoticed on the separation examination.  To this extent, his claim of continuity of symptoms is credible.  However, he now has degenerative joint disease of the right ankle (and left ankle) and gout.  The Board does not find his claim of continuity of symptoms since service convincing evidence that current right ankle disability is due to any incident in service.  Pain is not analogous to disability.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (the claimant was seeking service connection for a neck disability and an increased rating for a low back disability.  On the issue of service connection, the Court held that pain alone without a diagnosed or identifiable underlying malady or condition did not constitute a disability for which service connection may be granted.  Subsequently, the Federal Circuit dismissed the issue of service connection stating it was precluded from reviewing the factual determinations of the Board or the Court.)  In fact, the Board finds the VA etiology opinion more convincing than the Veteran's statements regarding continuous right ankle symptoms since service.  

There are approximately 50 years from separation from service and the Veteran seeking treatment at VA.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim).  The Board Veteran stated he sought treatment during this period with a private provider whose records are unavailable.  When first seen for right ankle symptomatology at VA, his symptoms were associated with a nonservice-connected gout disorder and not an independent right ankle disorder.  

Finally, turning to the nexus requirement in this case, the Board finds that the Veteran is not competent to render a medical opinion in this case.  See Jandreau, supra.  Instead, the only competent evidence with regards to a nexus in this case is the March 2013 VA examiner's opinion.  That examiner considered the Veteran's January 1957 injury and noted that it was a minor injury which would be unlikely to lead to the Veteran's arthritic condition.  He additionally noted similar arthritic changes in the uninjured left ankle, which appeared to be more severe than the right ankle arthritis in the service-injured ankle.  He therefore concluded that the Veteran's right ankle arthritis was less likely related to his military service.  

Insofar as the Veteran and his representative have argued that the March 2013 examiner's opinion is inadequate because the examiner did not specifically consider the lay statements of the Veteran with regards to initial injury and continuity, the Board points out that the examiner did address the 1957 ankle injury in service and the Veteran's claim of continuity of symptoms in his opinion.  It is apparent that the examiner found it unlikely that the injury in service caused current disability due to the relatively minor nature of the inservice injury, the conservative treatment in service, the negative x-ray findings in service and the degenerative changes existing in both ankles at present.  

The Board also finds that the Veteran's representative arguments that the examiner's opinion is inadequate because the examiner engages in impermissible finding of credibility of the lay evidence, see Sanden v. Derwinski, 2 Vet. App. 97, 100 (1992) (the Board's task includes determining credibility of the evidence), are not determinative.  The examiner noted that the symptoms were subjective and concluded that they were not manifestations of the right ankle disability first shown many years later.  

The examiner considered the statements of continuity in the last sentence of the opinion, but found them to be of little support in light of the objective medical evidence, which showed a bilateral ankle disability of comparable severity.  The Board does not find that to be a credibility analysis, but rather an analysis of the medical evidence in this case.  The examiner specifically engages the medical evidence in this case and uses the medical evidence to support his opinion.  In fact, the Board finds the Veteran's Sanden argument to be misplaced, as it does appear to the Board that the VA examiner did "accept[] as true" the Veteran's right ankle continuity lay evidence (noting that "in spite of" that evidence, there was little evidence to support that conclusion).

Thus, the Board specifically finds that the March 2013 examiner's opinion with respect to the right ankle disorder is adequate for rating purposes in this case.

In short, while the Veteran had a right ankle injury documented in his service treatment records, and the Veteran's statements regarding continuity of symptomatology are credible, the Board finds that a clear preponderance of the evidence does not support the finding of a nexus to service in this case.  Consequently, the service connection for a right ankle disorder is not established.  

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Service connection for a right ankle disorder is denied.


REMAND

The Board finds that the VA medical opinions obtained with respect to the other issues on appeal in this case require clarification.  Specifically, the Board notes that it requested the RO discuss the following points in the medical opinions, which were not discussed:

(a) Hearing Loss and Tinnitus: The Board requested that the examiner discuss "any noise exposure [during his military service] as a result of rifle range practice" as well as the Veteran's and his sister's lay statements; the examiner discussed whisper test results and the Veteran's post-service occupational noise exposure due to being a truck driver, as well as his familial history of hearing loss, though there was no discussion of any rifle range noise in service, nor that he heard a "buzzing noise" after firing on the range.  

(b) Lumbar Spine: The Board requested that the examiner discuss whether the Veteran's lumbar spine disorder was due to military service "to include carrying radios and heavy equipment on his back" as well as any lay statements with respect to continuity of symptomatology; the examiner noted that there was no in-service injury and that the Veteran's back was normal on separation from service, though no discussion with regards to carrying any type of equipment was made, nor is there any reference to the Veteran's statements regarding continuity of symptomatology.

(c) Right Knee: The Board requested an opinion as to whether any right knee disorder was due to service "to include any advanced combat training injury" in service, which the Veteran admitted not getting any treatment for, as well as any statements regarding continuity of symptomatology; the examiner did not discuss any advanced combat training injury that the Veteran has alleged, but rather relied on the fact that there are no in-service treatment records regarding the alleged injury and a normal knee on separation.

(d) Right Hip: The Board requested an opinion as to whether any right hip disorder was due to service "to include any fall from a rope ladder in service" as well as the Veteran's statements regarding continuity of symptomatology; the examiner did not discuss any rope ladder fall, instead relying on the fact that there was no in-service treatment records for a right hip injury and a normal right hip on separation from service.

The claims file should be returned to each examiner for addendums to consider past medical history with regards to the claimed injuries in service.  See Barr, supra; Stegall, supra.

Finally, the Board made no specific requests for a right little finger examination, though one was provided to the Veteran in August 2013.  In that examination, the Veteran was diagnosed with "remote extensor tendon rupture at DIP small finger of the right hand" on "unknown date."  The examiner noted that the Veteran reported that he "injured his right small finger in boot camp and was treated at a naval medical facility . . . though no documentation of the injury [appeared] in the [service treatment records] . . . [and] his hands were normal at discharge."  The examiner found that it was less likely than not the result of military service because "There [was] no in-service record of a right small finger injury . . . [and his] hands [were] without injury [on separation]."  

In this case, the Board notes that the Veteran has indicated that he broke his finger during boot camp-doing what, he has not elaborated-and was treated for that condition at a naval hospital.  The Board notes that no records confirm that broken finger, which the Veteran indicates involved a tearing of his tendons and a rejection of surgery at that time which would have led to a stiff finger.  He further stated that his finger has been deformed since that time.  

The Board finds clarification of the medical opinion is necessary because the absence of treatment records cannot form the entire basis of the rationale, particularly when the Veteran's lay statements indicate that he had a broken finger during service.  The examiner should clarify whether the normal evidence on separation from service contradicts the Veteran's reported lay evidence.  In so clarifying, the examiner should seek specific medical history with respect to the Veteran's right little finger injury that led to his seeking treatment.  See Barr, supra.

Ongoing private and VA treatment records should also be obtained.  See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); 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:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  Expedited handling is requested.)

1.  Obtain any relevant VA treatment records from the Hines VA Medical Center, or any other VA medical facility that may have treated the Veteran, since August 2013 and associate those documents with the claims file.

2.  Ask the Veteran to identify any private treatment that he may have had for his lumbar spine, right little finger, right knee, right hip and bilateral hearing loss and tinnitus disorders, which is not already of record, to include San Diego Hospital (if such is a private hospital and not a naval hospital) in 1956.  After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file.  If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf.

3.  Return the claims file to the appropriate examiners for clarification regarding their opinions regarding the etiology of pertinent disability.  The claims file and a copy of this Remand must be made available to and be reviewed by each examiner.  If an additional examination is deemed necessary by any examiner that examination should be scheduled.

(a) Lumbar Spine: The examiner should indicate whether any lumbar spine disorder found, including lumbar spinal stenosis, more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is related to military service, to specifically include carrying radios and heavy equipment on his back during military service.  

The examiner must specifically discuss the Veteran's contentions that his lumbar spine disorder is the result of carrying heavy weight on his back during service and that he has had continuous symptomatology since military service.

(b) Right Hip: The examiner should indicate whether any right hip disorder found more likely, less likely, or at least as likely as not began in or is related to military service, to specifically include falling from a rope ladder during service.  

The examiner must specifically discuss the Veteran's contentions that his right hip disorder is the result of falling from a rope ladder during military service, though he did not seek treatment for that condition during service.  The examiner must also discuss the Veteran's statements that he has had continuous symptomatology since military service.

(c) Right Knee: The examiner should indicate whether any right knee disorder found more likely, less likely, or at least as likely as not began in or is related to military service, to specifically include injuring his knee in advanced combat training during service.

The examiner must specifically discuss the Veteran's contentions that his right knee disorder is the result of an injury at advanced combat training, though he did not seek treatment for that condition during service; the examiner should clarify the medical history with respect to this injury during interview with the Veteran.  The examiner must also discuss the Veteran's statements that he has had continuous symptomatology since military service.

(d) Right Little Finger: The examiner should indicate whether the Veteran's previous diagnosis of "remote extensor tendon rupture at DIP small finger of the right hand" is correct, given the August 2013 right hand x-ray evidence and examination of the Veteran.

The examiner should additionally obtain further medical history from the Veteran with respect to how he injured his right little finger during military service in basic training.

The examiner should then opine whether any right little finger disorder found, including any arthritic condition thereof, is more likely, less likely, or at least as likely as not began in or is related to military service, to include any right little finger injury that the Veteran has alleged.

The examiner should specifically discuss whether the Veteran's right little finger disorder is the result of his described right little finger injury in service, and whether such a described injury/current deformity of the right little finger could plausibly be related to each other, as well as his statements regarding continuity of symptomatology since that injury in service.  The examiner should specifically address the normal separation examination when addressing this plausibility.

(e) Hearing loss and tinnitus: The examiner should indicate whether any bilateral hearing loss and/or tinnitus more likely, less likely, or at least as likely as not (50 percent or greater probability) arose as a result of military service, to include any noise exposure therein as a result of rifle range practice in basic training.

The examiner should take as conclusive fact that the Veteran was exposed to small arms noise as a result of his basic training.  The examiner must discuss that fact, as well as the Veteran's statement that he had a "buzzing sound" in his ears after firing on the range.

The examiner must also discuss the Veteran's lay statements, particularly his September 2012 hearing testimony, as well as his sister's June 2006 statements, including that their mother believed he had developed a hearing problem after returning from service, in her addendum opinion.

All opinions must be accompanied by a clear rationale.  If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided.  
When the Board states that the examiner must discuss "continuity of symptomatology," the examiner must opine and give a rationale for why he/she is accepting or rejecting the Veteran's statements, in more detail than just noting the lack of any medical treatment in service.

4.  Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claims of service connection for bilateral hearing loss, tinnitus, and lumbar spine, right hip, right knee, and right little finger disorders.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs