Citation Nr: 1503022 Decision Date: 01/22/15 Archive Date: 01/27/15 DOCKET NO. 10-47 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right elbow disability. 2. Entitlement to service connection for a left elbow disability. 3. Entitlement to an initial compensable disability rating for right Eustachian tube dysfunction. 4. Entitlement to an initial compensable disability rating for left Eustachian tube dysfunction. 5. Entitlement to an initial disability rating in excess of 10 percent for a disability of the cervical and lumbar spine, also claimed as the thoracic spine, from July 1, 2009 to April 1, 2010. 6. Entitlement to a disability rating in excess of 10 percent for a lumbar spine disability from April 1, 2010. 7. Entitlement to service connection for lumbar radiculopathy, claimed as sciatica. 8. Entitlement to a compensable disability rating for a cervical spine disability from April 1, 2010. 9. Entitlement to service connection for cervical radiculopathy. 10. Entitlement to service connection for a right shoulder disability, to include as secondary to the service-connected cervical spine disability. 11. Entitlement to service connection for a left shoulder disability, to include as secondary to the service-connected cervical spine disability. 12. Entitlement to an initial disability rating in excess of 10 percent for a left ankle disability. 13. Entitlement to service connection for a bilateral foot disability, to include as secondary to the service-connected left ankle disability. 14. Entitlement to an initial compensable disability rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1986 to March 1987, and October 1988 to June 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In the July 2009 rating decision, the RO also granted service connection for tinnitus, rated as 10 percent disability; granted service connection for gastroesophageal reflux disease, rated as 10 percent disabling; granted service connection for headaches, rated as noncompensable; granted service connection for temporal mandibular joint dysfunction, granted as noncompensable; granted service connection for hypertension, rated as noncompensable; denied service connection for a right lower leg fracture; denied service connection for a right ankle condition; denied service connection for a right ear infection; denied service connection for a left ear infection; denied service connection for sinusitis; denied service connection for a skin condition of the face; and denied service connection for a skin condition of the right arm. In his August 2009 notice of disagreement, the Veteran expressed disagreement only with decisions 1 through 13 listed on the title page of this decision, and in a May 2010 statement, disagreed with the initial rating for bilateral hearing loss. Accordingly, the Veteran did not perfect an appeal as to any other issues adjudicated in the July 2009 rating decision, and thus, those issues are not currently before the Board. In an October 2010 rating decision, the 10 percent disability rating assigned for the Veteran's cervical and lumbar spine disability, also claimed as the thoracic spine, was discontinued, and effective April 1, 2010, the Veteran was assigned a separate 10 percent disability rating for his lumbar spine disability, and a separate noncompensable rating for his cervical spine disability. As the Veteran has not been granted the maximum benefits allowed, the claims are still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in September 2014. A transcript of the hearing is associated with the Virtual VA paperless claims processing system. This is a paperless appeal located on the Virtual VA paperless claims processing system. Documents contained on the Veterans Benefits Management System include physical therapy treatment notes dated in December 2013; other documents are duplicative of the evidence of record. The issue of entitlement to a compensable disability rating for headaches has been raised by the record in the Veteran's September 2014 testimony before the Board, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The issues of entitlement to an initial compensable disability rating for right Eustachian tube dysfunction; entitlement to an initial compensable disability rating for left Eustachian tube dysfunction; entitlement to an initial disability rating in excess of 10 percent for a disability of the cervical and lumbar spine, also claimed as the thoracic spine, from July 1, 2009 to April 1, 2010; entitlement to a disability rating in excess of 10 percent for a lumbar spine disability from April 1, 2010; entitlement to service connection for lumbar radiculopathy, claimed as sciatica; entitlement to a compensable disability rating for a cervical spine disability from April 1, 2010; entitlement to service connection for cervical radiculopathy; entitlement to service connection for a right shoulder disability; entitlement to service connection for a left shoulder disability; entitlement to an initial disability rating in excess of 10 percent for a left ankle disability; entitlement to service connection for a bilateral foot disability; and entitlement to an initial compensable disability rating for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. (CONTINUED ON NEXT PAGE) FINDINGS OF FACT 1. The evidence of record is against a finding that the Veteran has a current right elbow disability. 2. The evidence of record is against a finding that the Veteran has a current left elbow disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right elbow disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2014). 2. The criteria for entitlement to service connection for a left elbow disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of: (1) any information and medical or lay evidence that is necessary to substantiate the claim; (2) what portion of the information and evidence VA will obtain; and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim: (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 v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran's claims for service connection were received in February 2009, prior to separation from service, as part of the Benefits Delivery at Discharge (BDD) Program. The evidentiary record indicates that an attachment to his VA Form 21-526 (Veteran's Application for Compensation and/or Pension) advised the Veteran of the evidence needed to substantiate the claims for service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claims. At the time he filed his claims, the Veteran signed a "Notice Acknowledgment and Response for the Benefits Delivery at Discharge Program," and indicated that he had no other information or evidence to give VA to substantiate his claims. Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims. The Veteran's lay statements, service treatment records, and VA treatment records have been associated with the claims file. The Veteran has not indicated that any private treatment reports relevant to his claims of service connection for a right or left elbow disability currently exist. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i). The Veteran was afforded a VA examination in February 2009. The examiner considered the Veteran's reports regarding his injuries and symptoms in service, and conducted physical examinations. Based on the foregoing, the February 2009 examiner provided an opinion regarding the existence of a current right elbow or left elbow disability. Given the foregoing, the Board finds the February 2009 examination reports to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claims for service connection of a right and left elbow disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As part of the duty to assist, the Veteran was also afforded a Board hearing pursuant to his request. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ of the Board or local decision review officer at the RO chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked and that may be advantageous to the claimant's position. Here, the VLJ fully explained the issues on appeal during the hearing. Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claims. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Thus, with respect to the Veteran's claims, there is no additional development that needs to be undertaken or evidence that needs to be obtained. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted on a presumptive basis for certain chronic diseases if they are shown to be manifest to a degree of 10 percent or more within one year following a veteran's separation from active military service. 38 C.F.R. §§ 3.307, 3.309. Arthritis is one such chronic disease. 38 C.F.R. § 3.309(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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. The United States Court of Appeals for the Federal Circuit has clarified that the notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), as an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis The Board has thoroughly reviewed all the evidence. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veteran contends that a disability of both his right and left elbows, manifested by a dull pain when he picks up objects, began toward the end of this active duty service. See September 2014 videoconference hearing testimony. The Veteran's service treatment records include a January 2004 Report of Medical Assessment in which the Veteran complained of possible arthritis in his elbows. In a January 2004 Report of Medical History the Veteran complained of bilateral elbow pain, but the examiner noted the Veteran had not sought treatment. Upon examination in January 2004, the examiner found normal upper extremities. In an April 2004 Medical Evaluation Board regarding the Veteran's back, the physician noted the Veteran complained of occasional bilateral elbow pain for which he had not sought treatment. In an April 2004 treatment note, the Veteran complained of bilateral elbow pain. Although the physician's handwriting is difficult to read, the assessment appears to be arthritis. However, even assuming the assessment was arthritis, the treatment note does not indicate that such assessment was confirmed by x-ray evidence. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. In September 2008, the Veteran again complained of pain in both elbows, and stated that he had x-rays taken while deployed in Korea that showed osteoarthritis bilaterally. However, no x-rays of the Veteran's elbows are associated with his service treatment records. Further, the September 2008 physician only assessed joint pain localized in the elbows, and the Veteran was given a 30 day temporary profile. In a December 2008 Report of Medical History, the Veteran complained of arthritis in his elbows, as well as pain in the elbows; the examiner noted under personal medical history on the Report of Medical History "[osteoarthritis]/[degenerative joint disease] back, neck, elbows." However, upon examination in December 2008, the examiner listed the Veteran's upper extremities as normal. The Veteran was afforded a VA examination in February 2009 in association with his claims, prior to his discharge from service. Upon examination, the Veteran reported that arthritis of the elbows had been diagnosed six months prior, and complained of weakness, stiffness, and pain in the elbows, elicited by physical activity. Upon examination, there was "no detectable alteration in form or function of the right and left elbows. No sign of edema, effusion, weakness, tenderness, redness, heat or abnormal movement. No fixed position [was] identified. There [was] normal strength and the range of motion of the right and left elbows [was full]." The examiner also noted that after repetitive use, "[p]ain, weakness, lack of endurance, fatigue or incoordination [did] not impact further on range of motion...." X-rays of the Veteran's complete right and left elbows were negative. The February 2009 VA examiner opined that there was no current pathology identified upon examination to render a diagnosis regarding either elbow. The Veteran's VA treatment records do not contain any complaints of pain in either of the Veteran's elbows. In December 2010 the Veteran complained to a VA primary care nurse of arthritis pain in his "right arm/shoulder area," however the nurse noted the Veteran was "still" having pain, indicating it was not a new complaint regarding other parts of his arm(s), but instead a continued complain regarding his right shoulder, as reflected in earlier VA treatment notes. See, e.g., August 2009 VA primary care note (Veteran complained of back and shoulder pain). Further, in the December 2010 VA primary care note, the Veteran's primary care physician made no mention of any pain, arthritis, or problems regarding the Veteran's elbows. In September 2014, the Veteran testified before the Board that he has not sought treatment for his elbows since his separation from active duty service, and that the medications he is prescribed for his back pain indirectly helps relieve the pain in his elbows. Further, the Veteran testified that physicians have not given him a diagnosis regarding his elbows, or an explanation for his elbow symptoms, and that x-rays have not been taken of his elbows. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, although there is evidence the Veteran complained of bilateral elbow pain during and since 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) (holding that pain alone without a diagnosed or identifiable underlying malady or condition did not constitute a disability for which service connection may be granted). The evidence does not confirm that a diagnosis of a disability in one or both elbows was made in service. As discussed above, although the April 2004 service treatment record may have included an assessment of arthritis, the treatment note did not indicate that such diagnosis was confirmed by x-ray evidence, and such an assessment was contradicted by subsequent service treatment records and examinations which found normal upper extremities. Further, there is no evidence that the Veteran currently has a right or left elbow disability, or that he had a disability in either elbow at any time during the pendency of this claim. Cf. McClain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, without a current diagnosis of a right and/or left elbow disability, service connection is not warranted. The Board has considered the lay evidence offered by the Veteran. This includes his statements, in which he asserted his belief that arthritis of the bilateral elbows was diagnosed during active duty service. Under certain circumstances, a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, however, the question of whether the Veteran had arthritis in one or both elbows during service is a complex medical question, unlike testimony as to varicose veins or flat feet, which are capable of direct observation. See Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). As arthritis is not a simple medical condition capable of lay diagnosis, the Veteran is not competent to render such diagnosis. Further, the Veteran's reports in 2008 and upon examination in February 2009 that arthritis was diagnosed in service are of little probative value, as these statements are contradicted by the medical evidence of record, as complete x-rays of both elbows taken upon VA examination in February 2009 were negative. The weight of the evidence is against the Veteran's claims, and the benefit of the doubt provision does not apply. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for a right elbow disability and a left elbow disability is not warranted. ORDER Entitlement to service connection for a right elbow disability is denied. Entitlement to service connection for a left elbow disability is denied. (CONTINUED ON NEXT PAGE) REMAND At his September 2014 videoconference hearing before the Board, the Veteran testified that since his separation from service he has received private treatment through Tricare, at the orthopedics department at Womack Army Hospital at Fort Bragg, and through the Joel Health Clinic under Womack Army Hospital, regarding his claims for his shoulders and cervical and lumbar spine. In a May 2010 statement, the Veteran indicated he was examined by the audiology clinic at UNC Chapel Hill. See also July 2010 VA ENT Consultation Request ("see audiogram and report dated 10/15/09 from UNC Hospitals Audiology"). The only private treatment records currently associated with the evidentiary record are physical therapy notes dated in December 2013, but which indicate physical therapy for the Veteran's neck and shoulder complaints began in November 2013. On remand, the AOJ should make appropriate efforts to obtain all pertinent private treatment records. Eustachian Tubes The Veteran testified before the Board in September 2014 that the dysfunction of his right and left Eustachian tubes has worsened since his last VA examination in February 2009, to include having to "pop" his ears up to 150 times per day in order to equalize the pressure. The Veteran's VA treatment notes indicate in April 2010 the Veteran complained of, and was treated for, drainage from his right ear lasting one month, and in September 2010 the Veteran complained of vertigo. Where a veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). Thus, a new VA examination is required to determine the current disability level for the Veteran's right and left Eustachian tube dysfunction. (CONTINUED ON NEXT PAGE) Cervical and Lumbar Spine, Radiculopathies, and Shoulders At the September 2014 Board hearing, the Veteran testified that his service-connected cervical and lumbar spine have gotten much worse since his last VA examination in February 2009. The Veteran reported experiencing muscle spasms on both sides of his lumbar spine and in his middle back, as well as waking up due to severe back pain. The Veteran testified that the pain will radiate up to his shoulders, and/or out spread out from his neck to his shoulders. The Veteran also testified that he experiences numbness and tingling in both of his arms, and a burning sensation that will shoot down both of his arms and affect three fingers, which will also sometimes feel numb or experience a tingling sensation. The Veteran testified that he believes his bilateral shoulder pain and symptoms are a condition of a nerve in his neck. Physical therapy notes dated in December 2013 indicate the Veteran was treated for pain in his neck which would radiate into his right shoulder, and pain which would affect his ability to move and/or use his right shoulder to perform activities of daily living. At the September 2014 hearing, the Veteran's wife testified she has to take on more activities and responsibilities around the home, including yard work, home maintenance, and driving, because of the pain and discomfort the Veteran experiences in his shoulders and his back. The Veteran's VA treatment records include numerous complaints of back and shoulder pain, and the Veteran has testified that he has received private treatment for his back and shoulders as well. Again, where a veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). On remand, a new VA examination is required to determine the current disability level for the Veteran's cervical and lumbar spine disability, and to determine the nature and etiology of any associated radiculopathy in the extremities, to include whether the Veteran's bilateral shoulder symptoms are related to his service-connected spine. Left Ankle and Bilateral Feet The Veteran also testified before the Board in September 2014 that his service-connected left ankle disability has gotten worse since his last VA examination in February 2009. The Veteran testified that his left ankle pain will increase and he will experience stiffness and a bit of a limp, especially with changing weather. The Veteran further reported that at times his ankle will feel aggravated and tight after a day of work and the range of motion will be affected, and that sometimes he will experience pain when he puts pressure on his foot while walking. The Veteran's wife testified that the Veteran cannot walk to join her in shopping or other activities. Again, where a veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). Further, upon VA examination in February 2009, the Veteran's feet and toes were within normal limits, and x-rays of the bilateral feet were negative. The February 2009 VA examiner did not diagnose a bilateral foot disability based upon the examination findings. However, upon VA examination in February 2009, x-rays of the Veteran's right ankle showed a "[s]mall osseous fragment inferior to the lateral malleolus[ which] may represent sequela of old trauma," and x-rays of the Veteran's left ankle showed a "[s]mall osseous fragment adjacent to the medial malleolus[, which] may represent sequela of prior trauma." At the September 2014 Board hearing, the Veteran noted that he severely sprained or fractured both of his ankles throughout his military career, and stated that he feels that pain in his ankles is radiating down into his feet to the bottom of his feet and his Achilles tendons. The Veteran's service treatment records confirm that during service, the Veteran fractured his left ankle, and sprained his right ankle multiple times. See October 1998 service treatment record (right ankle strain); June 1992 service treatment record (right ankle sprain); December 1988 service treatment note (right ankle sprain); November 1988 service treatment record (right ankle sprain with probable avulsion fracture). In 1988, an avulsion fracture of the right ankle was suspected and the Veteran's ankle was casted, however x-rays later ruled out such a fracture and confirmed that the ankle was sprained. See December 1988 service treatment record. On remand, the Veteran should be afforded a new VA examination to determine the current severity level of his service-connected left ankle disability, and to determine the nature and etiology of any current bilateral foot disability, to include any relationship to the Veteran's ankle(s). Hearing Loss On July 17, 2009, the Veteran was informed of the RO's July 2009 rating decision granting service connection for bilateral hearing loss, rated as noncompensable. On May 12, 2010, the RO received a written statement by the Veteran in which he disagreed with the noncompensable disability rating assigned to his bilateral hearing loss. The AOJ has not provided the Veteran with a statement of the case in response to this timely notice of disagreement of the initial disability rating assigned to his service-connected bilateral hearing loss. Because the notice of disagreement placed the issue in appellate status, the matter must be remanded for the originating agency to issue a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). (CONTINUED ON NEXT PAGE) Accordingly, the case is REMANDED for the following action: 1. The AOJ should ask the Veteran to identify all private medical providers with whom he has sought treatment for his right and left Eustachian tubes, his cervical and lumbar spine and any associated radiculopathy, his shoulders, his left ankle, and/or his feet. The AOJ should undertake appropriate development to obtain all outstanding private treatment records pertinent to the Veteran's claims, to include treatment records from providers the Veteran visited through Tricare, Womack Army Hospital at Fort Bragg, the Joel Health Clinic under Womack Army Hospital, the audiology clinic at UNC Chapel Hill, and all physical therapy notes if not included in the above records. The Veteran's assistance should be requested as needed. All outstanding VA treatment records should be obtained. All obtained records should be associated with the evidentiary record. The AOJ must perform all necessary follow-up indicated. If the records are not available, or a negative response is received, the AOJ should make a formal finding of unavailability, advise the Veteran and his representative of the status of his records, and give the Veteran the opportunity to obtain the records on his own. 2. After the above development has been completed, and after any records obtained have been associated with the evidentiary record, arrange for the Veteran to undergo a VA examination with an appropriate examiner to determine the current severity of his service-connected right and left Eustachian tube dysfunction. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. A complete history should be elicited directly from the Veteran, and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should specifically address the Veteran's testimony of needing to pop his ears up to 150 times per day to equalize the pressure, as well as the notations in the Veteran's VA treatment records of drainage from the Veteran's right ear, as well as his complaints of vertigo. See September 2014 videoconference hearing testimony; September 2010 VA audiology note (vertigo); April 2010 VA primary care note (drainage from right ear). The complete rationale for any opinions should be set forth. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered. 3. After #1 has been completed, and after any records obtained have been associated with the evidentiary record, arrange for the Veteran to undergo a VA examination with an appropriate examiner to determine the current severity of his service-connected cervical spine, lumbar spine, and left ankle disabilities, and to determine the nature and etiology of any cervical or lumbar radiculopathy, right and/or left shoulder disability, and bilateral foot disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. A complete history should be elicited directly from the Veteran, and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. For the Veteran's service-connected cervical spine, lumbar spine, and left ankle, the examiner should describe all pertinent symptomatology, and should provide the following information: a) The examiner should specifically state range of motion findings using a goniometer. b) The examiner should express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should also specifically report at what point any pain begins, and at what point any pain causes any functional impairment, or whether there is any additional range of motion loss due to excess fatigability, incoordination, or flare-ups. c) The examiner should comment upon the existence and frequency of any incapacitating episodes (i.e., a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician). d) The examiner should specifically assess the severity of all neurological symptomatology, if any, that is at least as likely as not due to the Veteran's service-connected cervical and/or lumbar spine disability. The examiner should specifically address the Veteran's claim of sciatica in his lower extremities. See February 2009 claim. The examiner should also specifically address the Veteran's testimony regarding pain, burning, numbness and tingling in his shoulders and down his arms into his hands which he attributes to a nerve in his neck. See September 2014 videoconference hearing testimony. For the claimed right and left shoulder and bilateral foot disabilities, after the record review and a thorough examination and interview of the Veteran, the VA examiner should offer his/her opinion with supporting rationale as to the following inquiries: a) Identify with specificity all right shoulder, left shoulder, and bilateral foot disabilities that are currently manifested, or that have been manifested at any time since February 2009. b) For all right shoulder disabilities and/or left shoulder disabilities, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's right and/or left shoulder disability is related to or caused by the Veteran's service? The examiner should specifically address the Veteran's testimony that he first experienced problems with his shoulders during his active duty service due to having to carry heavy rucksacks and equipment. See September 2014 videoconference hearing testimony. c) For all right shoulder disabilities and/or left shoulder disabilities, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's right and/or left shoulder disability was caused by his service-connected cervical spine disability? The examiner should specifically address the Veteran's testimony that he believes his shoulder pain and symptoms are due to a nerve in his neck. See September 2014 videoconference hearing testimony. The examiner should also specifically address the December 2013 physical therapy treatment notes indicating the Veteran was being treated for right shoulder pain as well as neck pain, and the Veteran's multiple complaints of neck pain and back pain in his VA treatment records. d) For all right shoulder disabilities and/or left shoulder disabilities, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's right and/or left shoulder disability is aggravated by his service-connected cervical spine disability? Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. e) For all bilateral foot disabilities, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's bilateral foot disability is related to or caused by the Veteran's service? The examiner should specifically address the Veteran's testimony that he believes his current bilateral foot pain and symptoms are related to the multiple fractures and/or sprains of both of his ankles during his active duty service. See September 2014 videoconference hearing testimony (pain radiates from his ankles down to the bottoms of his feet and his Achilles tendons); see also October 1998 service treatment record (right ankle strain); August 1997 x-ray report (fractured left ankle); June 1992 service treatment record (right ankle sprain); December 1988 service treatment note (right ankle sprain); November 1988 service treatment record (right ankle sprain with probable avulsion fracture). f) For all bilateral foot disabilities, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's bilateral foot disability was caused by his service-connected left ankle disability? g) For all bilateral foot disabilities, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's bilateral foot disability is aggravated by his service-connected left ankle disability? Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The complete rationale for all opinions should be set forth. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered. 4. The AOJ should conduct any other development deemed appropriate. 5. Issue a statement of the case, and notify the Veteran and his representative of his appellate rights, with respect to the issue of entitlement to an initial compensable disability rating for bilateral hearing loss. The Veteran and his representative should be informed of the requirements to perfect an appeal with respect to the issue. If the Veteran perfects an appeal, the AOJ should ensure that all indicated development is completed before the case is returned to the Board. 6. After the above development has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs