Citation Nr: 1508884 Decision Date: 03/02/15 Archive Date: 03/17/15 DOCKET NO. 13-00 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a psychiatric disorder. 4. Entitlement to service connection for hypertension, to include as secondary to a psychiatric disorder. 5. Entitlement to service connection for peripheral neuropathy of the right lower extremity. 6. Entitlement to service connection for peripheral neuropathy of the left lower extremity. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1968 to August 1970, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of June 2010 and August 2011 rating decisions of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of entitlement to service connection for posttraumatic stress disorder (PTSD) has been recharacterized as service connection of a psychiatric disorder in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND VA examination is needed to address the etiology of the Veteran's current hearing loss and tinnitus. A February 23, 2010, VA primary care note shows that the Veteran reported that hearing loss and tinnitus began approximately 10 years earlier, in 2000. At a VA examination May 2010, the Veteran could not recall when hearing loss and tinnitus had their onset. The VA examiner diagnosed a bilateral hearing loss disability and tinnitus; however, he could not determine their etiology without resorting to mere speculation. The rationale was that some degree of hearing loss pre-existed service, a separation audiogram was not performed, the Veteran could not recall when the disabilities had their onset (he did not report onset of either in service), and there were other potential etiologies, including aging, the etiology of the pre-existing hearing loss, non-service-connected hypertension, occupational and recreational noise exposure, and use of potentially ototoxic medications. In February 2013 and August 2013, the Veteran reiterated that he was exposed to loud noise during service, but he did not identify when his hearing problems began. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The claim of service connection for a psychiatric disorder must be remanded to obtain outstanding private treatment records and a VA examination. First, in a December 2009 letter, Dr. Fulmer reported that the he has treated the Veteran for 15 to 20 years (since approximately 1989). Dr. Fulmer noted that he has treated the Veteran for depression and that Dr. Nolin treated the Veteran for posttraumatic stress disorder (PTSD). Dr. Fulmer appeared to relate both disorders to the Veteran's military service. Records of treatment by Dr. Fulmer are from May 2002 to September 2009 and there are no records of treatment by Dr. Nolin. On remand, the Veteran must provide any outstanding private medical records, including those related to treatment from Dr. Nolin and Dr. Fulmer, from approximately 1989 to May 2002, or authorize VA to obtain the records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Second, the evidence of record suggests that the Veteran's current psychiatric disorder, to include depression, may be related to service in the Republic of Vietnam. However, the evidence of record is insufficient to decide the claim. Specifically, the May 2010 VA examination report does not address the outstanding, relevant private treatment records or whether the Veteran has a psychiatric disorder other than PTSD. Re-examination is needed. See id. The claim of service connection for hypertension must also be remanded for a VA examination. The evidence of record suggests that the Veteran's current hypertension, which was noted upon entrance to service, may have been aggravated during service or aggravated by the Veteran's psychiatric disorder. The evidence of record is insufficient to decide the claim. Re-examination is needed. See id. The claims of service connection for peripheral neuropathy of the lower extremities must be remanded to obtain outstanding VA treatment records and a VA examination. At a February 2011 VA examination, the Veteran reported a diagnosis of diabetes mellitus approximately 20 years earlier (1991) and that symptoms of peripheral neuropathy began approximately 10 years earlier (2001). The examiner noted that VA treatment records show that diabetes mellitus was diagnosed as early as July 2010. The examiner could not opine as to etiology of the peripheral neuropathy without evidence of a diagnosis of diabetes mellitus earlier than July 2010. In June 2011, a VA examiner opined that the Veteran's current peripheral neuropathy is less likely as not due to or aggravated by the service-connected diabetes mellitus. The opinion was based on the Veteran's reported symptoms of peripheral neuropathy since 2001 and VA medical records that show a diagnosis of diabetes mellitus in 2010. The rationale was that while diabetic neuropathy can precede diabetes mellitus, it is not likely to precede diabetes mellitus by ten years. The Board finds that the June 2011 medical opinion is based on inconsistent rationale. Specifically, the examiner relied upon the medical evidence of an initial diagnosis of diabetes mellitus in 2010, but ignored the Veteran's reported date of onset in 1991. However, the examiner relied upon the Veteran's reported date of onset of peripheral neuropathy in 2001, and ignored the medical evidence of an initial diagnosis in June 2011. Indeed, the medical evidence, by itself, shows that diabetes mellitus preexisted peripheral neuropathy by one year and the Veteran's statements, by themselves, show that diabetes mellitus preexisted peripheral neuropathy by 10 years. The examiner did not explain, and the Board cannot infer, why the examiner relied upon the Veteran's reported date of onset for peripheral neuropathy, but not diabetes mellitus. Her rationale indicates that if she relied solely on the Veteran's report or solely on the medical evidence, then she would have rendered a favorable opinion. Reexamination by a new examiner is needed. Additionally, all outstanding VA treatment records must be obtained to determine when the Veteran was initially diagnosed with diabetes mellitus and peripheral neuropathy. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request authorization and consent to release information to VA, from Dr. Nolin and Dr. Fulmer, from approximately 1989 to May 2002, as well as any other private doctor who has treated the Veteran's psychiatric disorder. Upon receipt of such, take appropriate action to contact the identified providers and request complete records related to a psychiatric disorder. The Veteran should be informed that in the alternative he may obtain and submit the records himself. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain complete VA treatment records. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for a VA audiology examination by an appropriate professional who has not previously examined the Veteran. The examiner must review the entire claims file, to include all electronic files. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the current hearing loss or tinnitus is related to the Veteran's active service, to include the conceded acoustic trauma in service. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge or by a deficiency in the record or the examiner. 4. Schedule the Veteran for a VA psychiatric examination by an appropriate professional. The examiner must review the entire claims file, to include all electronic files. The examiner is to diagnose any current psychiatric disorder. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed disorder is related to the Veteran's active service. The examiner is to address whether Dr. Nolin or Dr. Fulmer's treatment records suggest that the Veteran has a psychiatric disorder due to service. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge or by a deficiency in the record or the examiner. 5. Schedule the Veteran for a VA examination by an appropriate medical professional. The examiner must review the entire claims file, to include all electronic files. As to hypertension, the examiner is to provide an opinion as to whether the Veteran's hypertension, which was noted upon entrance to service in September 1968, underwent worsening during service. As to peripheral neuropathy, the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the current peripheral neuropathy is caused by the service-connected diabetes mellitus. The examiner is to also provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the current peripheral neuropathy is aggravated by the service-connected diabetes mellitus. The examiner is to address the Veteran's assertion that diabetes mellitus began in 1991 and peripheral neuropathy began in 2001. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. If aggravation of peripheral neuropathy is found, the examiner must attempt to establish a baseline level of severity of peripheral neuropathy prior to aggravation by the service-connected diabetes mellitus. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge or by a deficiency in the record or the examiner. 6. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M. N. HYLAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).