Citation Nr: 1603821 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 09-39 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected tinea versicolor. 2. Entitlement to service connection for a right shoulder condition, to include as due to undiagnosed illness. 3. Entitlement to service connection for residuals of a right ankle sprain, to include as due to undiagnosed illness. 4. Entitlement to service connection for an eye disorder, to include as secondary to a service-connected disability. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1988 to September 1992 and from February 2003 to May 2004, to include service in the Southwest Asia theater of operations during the Persian Gulf War. He had additional service in the Army Reserves. These matters come before the Board of Veterans' Appeals (Board) from January 2009 and February 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2015, the Board remanded the claims for full compliance with February 2014 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). As noted in the January 2015 remand, a claim for a clothing allowance as well as claims for entitlement to service connection for a left ankle disorder, radicular pain in the left lower extremity, right and left hip disorders, right and left knee disorders, a cervical spine disorder, a thoracic spine disorder, discogenic neuropathy of the right upper extremity, a TBI, and a respiratory disorder, to include bronchial asthma, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issues of entitlement to service connection for residuals of a right ankle sprain, entitlement to service connection for an eye disorder, entitlement to service connection for bilateral hearing loss and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The evidence does not show that tinea versicolor covers 20 to 40 percent of the Veteran's entire body or 20 to 40 percent of exposed areas affected, or; the use of systemic therapy such as corticosteroids or other immunosuppressive drugs; marked interference with employment and frequent hospitalization caused by tinea versicolor have not been shown. 2. The Veteran initially complained of shoulder pain in March 2005; the evidence reflects that the rotator cuff calcific tendinitis and mild degenerative changes at the AC joint found on x-ray in January 2013 are commensurate with age and it is not at least as likely as not that a right shoulder condition had onset in service. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for service-connected tinea versicolor have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7820-7806 (2015). 2. The criteria for service connection for a right shoulder condition have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must inform the claimant of any information and 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. The notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to an initial rating claim, such a claim is generally considered to be a "downstream" issue from the original grant of benefits. VA's General Counsel issued an advisory opinion holding that separate notice of VA's duty to assist the Veteran and of his concomitant responsibilities in the development of his claim involving such downstream issues is not required when the Veteran was provided adequate VCAA notice following receipt of the original claim. See VAOPGCPREC 8-2003. Further, where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. See Goodwin v. Peake, 22 Vet. App. 128 (2008), citing Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). In this case, the Veteran has not alleged that he has suffered any prejudice as to the lack of pre-adjudicatory notice specific to the initial rating claim. Notably, a notice of disagreement as to an initial rating does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See 38 C.F.R. § 3.159(b)(3) (2015). Rather, the claimant's appeal of an initial rating triggers VA's duty to develop that claim, as set forth at 38 U.S.C.A. §§ 5104, 7105; 38 C.F.R. § 3.103. Under these, VA is required to advise the claimant of what evidence is necessary to obtain the maximum benefit allowed by the evidence and the law. This is accomplished in a statement of the case (SOC). In this case, the Veteran was provided with VCAA notice in June 2008 prior to the initial rating decision in January 2009 which addressed the issues being decided herein. The letter informed the Veteran of the evidence necessary to establish service connection, of how VA would assist him in developing his claim, and his and VA's obligations in providing such evidence for consideration. The August 2009 SOC provided the Veteran with the relevant rating criteria and he was informed of the evidence needed to achieve a higher schedular rating. Thus, VA's duties under 38 U.S.C.A. §§ 5104 and 7105 have been satisfied. VA also has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). In this case, the RO associated the Veteran's service treatment records (STRs), Military Personnel Records, Social Security Administration (SSA) records, private treatment records and VA treatment records with the claims file. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. In addition, the Veteran was afforded appropriate VA examinations. The examiners who conducted the November 2008, April 2012, May 2012 and May 2015 skin and shoulder examinations had access to and reviewed all the evidence in the claims file, recorded the Veteran's subjective complaints, and provided detailed and comprehensive opinions regarding the severity of the Veteran's symptoms. The examination reports were thorough and sufficiently detailed as to the Veteran's symptomatology. Two addendum opinions were obtained in January 2013 and February 2013 regarding the etiology of the Veteran's shoulder disability. The Board finds that the rationale provided by the examiners as to the etiology of the Veteran's shoulder condition is adequate to allow adjudication of the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board finds that no additional RO action to further develop the record, prior to appellate consideration, is warranted. The Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Increased Ratings Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Where a Veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the 'present level' of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the rating claim has been pending). III. Entitlement to an Increased Initial Rating for Tinea Versicolor In January 2009, the RO granted service connection for tinea versicolor and assigned an evaluation of 10 percent effective April 24, 2008. The Veteran's disability is rated under DC 7820-7608. DC 7820 refers to infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal and parasitic diseases). DC 7820 indicates such diseases can be rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801 - 7805) or dermatitis (DC 7806) depending on the prominent disability. Here, there is no evidence of disfigurement of the head, face or neck or evidence of scars. As such, the proper code for consideration is DC 7806. Under DC 7806, a rating of 10 percent is assigned with at least 5 percent, but less than 20 percent, of the entire body affected; or, at least 5 percent, but less than 20 percent, of the exposed areas affected; or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than 6 weeks during the past 12-month period. A rating of 30 percent is assigned with 20 to 40 percent of the entire body or exposed areas affected; or, systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constant, during the past 12-month period. A rating of 60 percent is assigned with more than 40 percent of the entire body or exposed areas affected; or, constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. The 10 percent rating granted in January 2009 was based on a November 2008 VA examination at which the Veteran indicated he had discoloration and dry skin patches, but had not had any treatment for the condition within the past 12 months. Upon physical examination, tinea versicolor was noted on the shoulders, back and ankles. The percentage of exposed areas affected was 0 percent and the total body area affected was measured between 10 and 20 percent. In a private treatment record dated in December 2010, a Dr. Y. indicted the Veteran had a "constant irritation and itching on his chest and back." Based on this evidence, the Board remanded the claim for another VA examination in March 2012. In May 2012, the Veteran underwent a VA examination. The Veteran claimed intermittent attacks of "patches on back and head, sometimes the skin itches and flakes." He indicated this would occur 2 to 3 times a month, for a couple of days. He indicated the rash was triggered by sweating. He indicated that a few years previously, he was prescribed shampoo that helped, but currently he was not on any treatment for the rash. There was no scarring or disfigurement of the head, face or neck. The Veteran did not have any benign or malignant skin neoplasms or any systemic manifestations due to skin disease. It was indicated the Veteran did not have any visible skin conditions. Based on the results of the May 2012 VA examination, an increased rating was again denied in a February 2013 supplemental statement of the case. In February 2014, the Board remanded the claim again for another examination which took place in May 2015. At the examination, it was noted the Veteran continued to have intermittent breakouts of rash accompanied with symptoms of pruritus several times a year, usually precipitated by sweating for which he used a prescription shampoo. It was noted the rash usually occurred on the head, back and chest area. It was noted the Veteran did not have a rash at the time of the examination and that none of the Veteran's skin conditions caused scarring or disfigurement of the head, face or neck. The Veteran did not have any benign or malignant skin neoplasms or any systemic manifestations due to any skin diseases. The examination report indicated the Veteran had been treated with topical medications, specifically prescription shampoo for 6 weeks or more, but not constantly during past 12 months. Other treatments were denied and it was noted that his skin conditions were not visible on his face, neck or hands. In this case, for a rating in excess of 10 percent to be granted under the rating schedule, the evidence would have to demonstrate that 20 to 40 percent of the entire body or exposed areas of the Veteran's body was affected; or, that the Veteran was using systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constant, during the past 12-month period. At no time during the appeal period has the evidence demonstrated this level of disability. As such, the evidence does not support entitlement to an initial rating in excess of 10 percent under the rating schedule. VI. Extraschedular Considerations The Board has considered the provisions of 38 C.F.R. § 3.321(b)(1) and whether the record shows that the Veteran's tinea versicolor is so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1) (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms"(which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not demonstrate that the Veteran has such an exceptional disability picture that the available schedular rating is inadequate. At no time has the Veteran been seeking treatment for his condition and examination reports did not show the condition was visible. Furthermore, there is no evidence of interference with employability caused by the skin condition or evidence of hospitalization. V. Service Connection Generally Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may also 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). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted or an injury suffered; and (3) competent evidence of a nexus or connection between the disease or injury in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may be established for a Persian Gulf Veteran who exhibits objective indications of chronic disability that cannot be attributed to any known clinical diagnosis, but instead results from an undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317(a)(1)(i) (2014). See also 76 Fed. Reg. 81834 (Dec. 29, 2011). Effective March 1, 2002, the law affecting compensation for disabilities occurring in Persian Gulf War Veterans was amended. 38 U.S.C.A. §§ 1117, 1118. Essentially, these changes revised the term "chronic disability" to "qualifying chronic disability," and involved an expanded definition of "qualifying chronic disability" to include: (a) an undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2)(B) ; 38 C.F.R. § 3.317. The term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Signs or symptoms that may be a manifestation of an undiagnosed illness or a chronic multi-symptom illness include: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 U.S.C.A. § 1117(g) ; 38 C.F.R. § 3.317(b) . Section 1117(a) of Title 38 of the United States Code authorizes service connection on a presumptive basis only for disability arising in Persian Gulf Veterans due to "undiagnosed illness" and may not be construed to authorize presumptive service connection for any diagnosed illness, regardless of whether the diagnosis may be characterized as poorly defined. VAOPGCPREC 8-98 (Aug. 3, 1998). VI. Entitlement to Service Connection Initially, the Veteran was not provided a VA examination because there was no evidence of treatment for or complaint of injury to or pain in the right shoulder in the service treatment records (STRs). A VA treatment record dated in March 2005 noted "shoulder pains." In a September 2010 statement, Dr. Y., the Veteran's private chiropractor, noted the Veteran had diffuse right arm paresthesia and pain extending into the hand and poor tactile discrimination. Discogenic neuropathy of the right upper extremity was diagnosed. Specifically, Dr. Y. cited injuries sustained by the Veteran in the course traveling rough terrain and falling, while wearing approximately 100 pounds of gear, including a 60 pound vest that rested on his shoulders. In March 2012, the Board remanded the claim for a VA examination pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006). At a VA examination in April 2012, the Veteran reported that he was involved in a rollover accident while riding in the cab of a large truck in Iraq in 2003. He reported right shoulder pain beginning after this accident. He stated that he was originally diagnosed with a shoulder strain and had continued to have unrelenting pain, which was treated with medication only. In response to whether the Veteran had or had ever had a shoulder condition, the examiner noted right shoulder strain and stated he could not give an etiology opinion because no x-rays had been ordered. These were scheduled. X-rays taken in January 2013 were negative for acute fracture. Subtle calcifications suggested rotator cuff calcific tendonitis. It was noted that small subacromial spurs might predispose the Veteran to rotator cuff pathology. There were mild degenerative changes at the AC joint. In January 2013, an addendum medical opinion was provided. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury. The examiner provided a rationale stating that right shoulder imaging was consistent with degenerative changes commonly seen in the Veteran's age group. In February 2013, another VA examiner reviewed the claims file and provided an additional opinion. The examiner stated that the timing of the Veteran's right shoulder injury, right shoulder strain, currently diagnosed as rotator cuff calcific tendinitis and mild degenerative changes in the AC joint was unclear and no service treatment records regarding a rollover accident in Iraq were found nor was there injury or medical evaluation for a right shoulder injury during the Veteran's first period of active duty. In a February 2014 remand, the Board sought an supplemental medical opinion or, in the alternative, another VA examination and requested that if the examination revealed symptoms related to the Veteran's claimed right shoulder disorder, including pain, that could not be attributed to a known diagnostic entity, the examiner should provide an opinion as to whether any such symptoms represented an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service. In May 2015, the Veteran underwent another examination of his shoulder. The examiner indicated having reviewed the records in the electronic claims file. The Veteran indicated pain in the right shoulder that prevented him from lifting or doing pushups. Range of motion was normal. No diagnosis was rendered. The examiner opined: Vet[eran's] current complaints of right shoulder pain are less likely than not a result of military service. On reviewing the [Veterans Benefits Management System] records, there was no indication that the Vet[eran] had a chronic right shoulder condition as a result of a MVA he was involved in [sic] 2003. Vet[eran] was noted to have mild arthritic changes and rotator cuff pathology on right shoulder x-rays done in 2013, many years after leaving active military service. Examination of the right shoulder done today did not show any objective evidence of a chronic right shoulder condition. Veteran's current complaints of right shoulder pain are at least as likely as not a result of the abnormal findings noted on right shoulder x-rays done in 2013. Here, the evidence shows diagnosis of rotator cuff calcific tendinitis and mild degenerative changes around the AC joint discovered on x-ray in January 2013. The STRs do not show treatment for shoulder pain or disability during service and there is no evidence of a chronic disability in the shoulder. The Board finds that the preponderance of the evidence does not support the claim and the most probative evidence suggests that the Veteran's right shoulder complaints are consistent with age and not at least as likely as not related to an injury sustained on active duty. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial disability rating in excess of 10 percent for service-connected tinea versicolor is denied. Entitlement to service connection for a right shoulder condition is denied. REMAND Reasons for Remand: To ensure compliance with prior to remand directives, to schedule the Veteran for VA examinations and to readjudicate the inextricably intertwined issue of entitlement to a TDIU. I. Right Ankle As set forth in the February 2014 Board remand, service treatment records reflect that, in April 1990, the Veteran injured his right ankle. X-ray was negative. The assessment was ankle sprain. In May 1991, July 1992, and January 1997 Reports of Medical History, the Veteran denied having or ever having had swollen or painful joints or foot trouble. On examination in July 1992 and January 1997, clinical evaluation of the lower extremities was normal. An August 1997 Statement of Medical Examination and Duty Status reflects that the Veteran injured his right ankle while on inactive duty for training. He was placed on a physical profile for a right ankle sprain in September 1997. A February 1998 physical profile indicates that the previous right ankle strain had resolved. In November 2001and April 2005 Reports of Medical History, the Veteran denied having or ever having had arthritis, rheumatism or bursitis; impaired use of the arms or feet; or a bone, joint, or other deformity. On examination, clinical evaluation of the lower extremities was normal. During private treatment in August 2006, the Veteran complained of bilateral foot pain. The assessment included pain in joint, ankle and foot. In March 2008, the Veteran was issued an ankle brace. X-rays were negative and it was noted there were no acute fractures or dislocations seen; no degenerative changes were recognized and the soft tissue structures were unremarkable. An April 2008 VA treatment record showed that although the Veteran complained of pain, he had normal range of motion in his right ankle and x-rays of his right ankle were negative at that time. In a May 2008 Report of Medical History, the Veteran reported that he had swollen or painful ankles. On examination, clinical evaluation of the lower extremities was normal. At a VA examination in November 2008, the Veteran reported that he had a history of right ankle sprain. Examination and X-ray of the right ankle were normal. The examiner commented that the right ankle sprain had resolved. In a February 2009 statement, the Veteran asserted that both of his ankles were injured ever since basic training. He reported that his condition got worse during the Gulf War and he was presently experiencing pain and swelling in his ankles when he was on his feet for too long. Thereafter, in a September 2010 report from Dr. Y., it was noted that the Veteran had remarkable pain and swelling of the right foot and crepitus could be palpated at the ankle and at the tarsal/metatarsal regions. Although Dr. Y. opined that the Veteran's foot disorder was due to service, he did not render a diagnosis of a right ankle disorder. In a March 2012 remand, the Board sought another examination of the ankle. The Veteran underwent a VA examination April 2012. The Veteran reported that he had had multiple right ankle sprains over the past six to seven years that had caused him to have chronic ankle pain. In response to whether the Veteran had or had ever had an ankle condition, the examiner noted right ankle internal derangement. The examiner opined that the Veteran's claimed right ankle condition was less likely than not incurred in or caused by an injury in service. In providing a rationale for this opinion, he stated that, while the Veteran did have documented evidence of a right ankle condition, he had a relatively benign objective physical examination with normal radiographs of his ankle. In February 2013, a VA examiner reviewed the claims file and opined that the Veteran's claimed right ankle condition, with current normal right ankle on examination and X-ray, was less likely than not incurred in or related to military service. In providing a rationale, the examiner stated that service treatment records documented an acute injury and treatment for a right ankle sprain, but there was no evidence of an ongoing problem with the right ankle involving recurring sprains and pain. In a February 2014 remand, the Board sought a supplemental medical opinion or, in the alternative, another VA examination and requested that if the examination revealed symptoms related to the Veteran's claimed right ankle disorder, including pain, that could not be attributed to a known diagnostic entity, the examiner should provide an opinion as to whether any such symptoms represented an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service. In May 2015, the Veteran underwent a VA examination. The Veteran related that he twisted his ankle while running while on active duty and it "never healed right." He indicated pain in his ankles with walking that continued through the night. Upon examination, range of motion was normal. No abnormality was noted and there was no ankle effusion present. The examiner indicated that the Veteran's main complaints centered on plantar fasciitis and the pain in his feet. There was no objective evidence of chronic ankle sprains or "aggravation or persistence of ankle sprains." The examiner opined that it was less likely than not that an ankle disability was caused by or a result of military service. Notably, the May 2015 examiner did not provide an opinion regarding whether the Veteran's symptomatology represented an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service. Because RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance, the Veteran's appeal must again be remanded. See Stegall v. West, 11 Vet. App. 268 (1998). II. Eye Disorder Service treatment records show treatment for a swollen left upper eyelid in August 1992. As noted in the February 2014 remand, in July 1992, January 1997, and November 2001 Reports of Medical History, the Veteran denied having or ever having had eye trouble. On examination, clinical evaluation of the eyes, including ophthalmoscopic examination, was normal. At a VA examination in November 2008, the Veteran reported a history of trauma to the eye in 2004 when he experienced head trauma in service. The diagnosis was headaches. The examiner commented that ocular examination revealed healthy anterior and posterior segment tissues with no anomalies and the Veteran's vision was good with a proper prescription in place. In a February 2012 VA treatment record, the Veteran underwent a diabetic eye examination. His dilated retinal examination results came back normal. In the March 2012 remand, the Board noted that VA is required to provide specialist examinations for specified disorders, including a vision disorder. See VBA Fast Letter 10-32. Therefore, a remand was ordered to schedule the Veteran for an examination with a specialist. In April 2012, the Veteran underwent an examination with an ophthalmologist. The specialist provided a diagnosis of photophobia associated with blepharospasm without physical ocular correlate. The Veteran complained of a severe burning sensation and variably blurred vision of several years duration often precipitated by bright light partially relieved by topical wetting agents, eye lubricants, dark glasses and/or a brimmed hat. The Veteran indicated he had served in the Middle East and his eyes had been exposed to sandstorms after which he had experienced severe ocular pain, irritation and photophobia. Following examination of the Veteran, when asked whether the Veteran's eye disorder was incurred during or was etiologically related to his period of military service, the examiner opined: Based upon my review of the c-file, the results of this exam and my clinical experience it is my opinion that this Veteran's condition of photophobia and blepharospasm has no physical ocular correlate. However, my opinion does not preclude a psychosomatic etiology of his ocular symptoms in this veteran w[ith] [service-connected] [posttraumatic stress disorder] incurred during or etiologically related to his period of service. A May 2012 VA headaches examination indicated that the Veteran experienced sensitivity to light as a non-headache symptom associated with headaches. In a February 2014 remand, the Board sought a VA psychiatric examination to determine whether the Veteran had an eye disorder related to his service-connected psychiatric disorder. In April 2015, the Veteran underwent a VA examination. The examiner diagnosed photophobia associated with blepharospasm accompanied by onset of bi-frontal headaches. The Veteran stated he was exposed to sandstorm in Saudi Arabia in 1991 which resulted in him "not being able to see for several days." The Veteran indicated he currently had to wear sunglasses in order to partially alleviate severe photophobia and bi-frontal headaches which he stated he had suffered for the past 18 years. It was noted the Veteran was "demonstrably exquisitely photophobic & blepharospastic OU during [dilated fundus examination] DFE evidenced by avoidance maneuvering, groaning sounds and complaining of the onset of headaches." It was indicated these symptoms were relatively transient upon completion of the dilated fundus examination. The examiner indicated that the examination did not reveal any ocular physical correlates that explain the Veteran's photophobia or blepharospasm. Currently, the evidence does not show diagnosis of an eye condition that is related to service. Photophobia has been shown on examination to be a symptom of the Veteran's service-connected migraine headaches and otherwise, there is no evidence of a diagnosed eye condition for which compensation could be granted. However, the Veteran is service-connected for headaches and it is currently unclear whether blepharospasm is simply a symptom or is a disability that is secondary to that service-connected disability. To afford the Veteran every opportunity and to ensure that VA satisfies its duty to assist, the Board will remand the claim for a VA examination to determine whether any diagnosable eye condition could be said to be caused by or aggravated by the Veteran's service-connected headaches. III. Bilateral Hearing Loss Noise exposure in service is conceded; however, it is unclear whether the Veteran currently has a hearing loss disability for VA purposes or some other disability of the ear that should be service connected. Audiograms throughout the record show inconsistent results. Audiograms dated in May 2008, July 2008 and August 2008 indicate the following puretone thresholds in decibels: May 2008 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 30 35 45 35 45 Left Ear 40 35 35 30 35 July 2008 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 30 25 15 30 Left Ear 30 30 25 25 35 August 2008 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 15 20 25 25 Left Ear 15 20 10 10 15 In November 2008, the Veteran underwent a VA audiological examination in connection with his claim for service connection. The examiner found that although the Veteran was exposed to noise trauma during service, his hearing was normal and he did not meet the criteria for compensation for hearing loss for VA purposes. Puretone thresholds in decibels were as follows: November 2008 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 15 15 15 15 25 Left Ear 15 15 10 10 15 A Reference Audiogram dated in August 2009 again demonstrated worsened hearing and reflected puretone thresholds in decibels as follows: August 2009 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 25 30 45 50 35 Left Ear 25 30 30 20 20 An August 2010 Reference Audiogram indicated the following puretone thresholds in decibels: August 2010 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 25 30 25 25 35 Left Ear 15 30 15 20 20 In September 2010, the Veteran submitted a letter from Dr. Y. in which the doctor stated that the Veteran had 30 percent bilateral hearing loss under normal day to day conditions. Given evidence of a current disability, the Board remanded the claim in March 2012 for another VA examination. At a May 2012 VA examination, puretone thresholds in decibels were as follows: May 2012 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 15 15 15 15 25 Left Ear 15 15 10 10 15 The examiner opined that it was less likely than not that hearing loss was caused by or a result of an event in military service. She stated that audiograms performed from 1989 to 2005 revealed normal hearing and stable hearing thresholds in both the right and left ears. The examiner commented that an ear, nose, and throat (ENT) referral might be warranted due to asymmetry of hearing loss from the right to left ears, which would rule out any retrocochlear pathology. In February 2014, the Board remanded the claim again for another VA examination. The Board asked the examiner to "consider and address any shift in the Veteran's hearing acuity during service and the May 2008 audiogram indicating the presence of hearing loss since the filing of the claim for service connection in April 2008." In addition, the Board asked the examiner to "comment as to whether an ENT referral is necessary to determine the etiology of any hearing loss present since around April 2008, in light of the May 2012 comment." At the January 2015 examination, it was noted that the audiogram results should not be used as reliable thresholds. January 2015 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 25 20 25 30 Left Ear 20 25 25 20 25 The examiner stated: These are only the best response provided by the veteran, but results were not reliable. Test retest varied by more than 10 dB each ear at each presentation trial. These scores are only provided as evidence of unreliability and mismatch between air condition scores and bone conduction scores. These scores should not be used for rating due to unreliability of responses. The Board notes that the January 2015 examiner provided no rationale or reasoning as to why the results might be unreliable. In addition, the examiner did not provide the opinion asked for in the February 2014 remand regarding shifts in the Veteran's hearing acuity since April 2008. Also, the examiner made no comment as to whether referral to an ENT would be appropriate. Because RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance, the Veteran's appeal must again be remanded. See Stegall v. West, 11 Vet. App. 268 (1998). Another examination should be scheduled to obtain the requested opinions and to determine whether the Veteran currently has hearing loss for VA purposes or another disability of the ear that is related to conceded exposure to acoustic trauma during service. IV. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Currently, the Veteran is service connected for PTSD rated as 70 percent disabling from April 24, 2008, for degenerative arthritis of the thoracolumbar spine rated as 40 percent disabling from April 21, 2012, for migraine headaches rated as 30 percent disabling from May 30, 2008, for tinnitus rated as 10 percent disabling from April 24, 2008, for tinea versicolor rated as 10 percent disabling from April 24, 2008, for right wrist tendonitis rated as 10 percent disabling from May 30, 2008, for radiculopathy of the right lower extremity rated as 10 percent disabling from April 21, 2012, and for shin splints rated as 0 percent disabling from April 24, 2008. The Veteran's combined disability evaluation was 80 percent from April 24, 2008 and 90 percent from May 30, 2008. For the duration of the appeal period, the Veteran has satisfied the schedular requirement for entitlement to a TDIU. The record to this point, however, does not reflect that any of the above disabilities alone, or together, preclude him from gaining or maintaining employment. At an examination for his PTSD in April 2015, the examiner noted that the Veteran maintained meaningful relationships and had "generally good occupational and social functioning". It was noted the Veteran engaged in a variety of normal, routine activities of daily living and social activities. The examiner commented he had transient, mild and expected reactions to psychosocial stressors. It was noted that at that time, the Veteran was still in the Army Reserves, promoted to E-6 and was attending all drills and classes. In addition, he accompanied his wife when she showed homes to prospective buyers as a realtor; or, alternatively, he helped care for their two daughters at home. Since the April 2015 examination, the Veteran separated from the Army Reserves for medical reasons. In addition, the issue of entitlement to a TDIU is inextricably intertwined with the other claims being remanded in this decision. Therefore, the Board must defer consideration of such claim until the development of the Veteran's service connection claims is complete. Accordingly, the case is REMANDED for the following action: 1. Associate any outstanding VA treatment records with the electronic claims file. 2. After records are obtained to the extent available, schedule the Veteran for a VA examination to ascertain the nature and etiology of any chronic disability or undiagnosed illness manifested by symptomatology in the right ankle. The complete record, to include a copy of this REMAND and the electronic claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. Following examination of the Veteran and review of the record, the examiner should express an opinion as to the following: (a) whether it is at least as likely as not (50 percent probability or more) that any of the Veteran's symptoms affecting his right ankle constitute an undiagnosed illness or a chronic disability caused by a medically unexplained illness. (b) whether it is at least as likely as not (50 percent probability or more) that any of the Veteran's symptoms affecting his right ankle constitute a functional diagnosable disorder or disorders. (c) As to any demonstrated diagnosable disability, express an opinion as to whether it is at least as likely as not (50 percent probability or more) that any demonstrated disability is etiologically related to or caused by active service or whether such disability was at least as likely as not caused by or aggravated by any of the Veteran's service-connected disabilities. Note: The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of conclusion as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. After records are obtained to the extent available, schedule the Veteran for a VA examination to obtain an opinion as to whether it is at least as likely as not (50 percent probability or more) that a diagnosable eye condition was caused by or aggravated by his service-connected migraine headaches. If the migraine headaches aggravated, contributed to or accelerated any diagnosable eye condition, the reviewer must state to what extent the disability did so. The complete record, to include a copy of this REMAND and the electronic claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. For purposes of this analysis, "aggravation" is defined as a permanent worsening of the nonservice-connected disability beyond that due to the natural disease process. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. After records are obtained to the extent available, schedule the Veteran for a VA audiological examination to determine whether the Veteran currently has hearing loss for VA purposes or another disability of the ear that is related to conceded exposure to acoustic trauma during service The complete record, to include a copy of this REMAND and the electronic claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should first determine whether the Veteran has hearing loss for VA purposes. "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent." 38 C.F.R. § 3.385. Following consideration of the record, the examiner should then state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's hearing loss is causally or etiologically related to conceded noise exposure during service. In so doing, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that any current hearing loss was caused by noise exposure in service as opposed to some other cause. As asked in the February 2014 remand, the examiner must "consider and address any shift in the Veteran's hearing acuity during service and the May 2008 audiogram indicating the presence of hearing loss since the filing of the claim for service connection in April 2008." The examiner should also note hearing acuity shifts between 2008 and 2010 as set forth in the body of this REMAND and, if possible, provide an explanation for the inconsistent results. In addition, the examiner should comment as to whether an ENT referral is necessary to determine the etiology of any hearing loss present since around April 2008, in light of the comment by the May 2012 VA examiner that referral might be warranted due to asymmetry of hearing loss from the right to left ears, which would rule out any retrocochlear pathology. If referral is found to be warranted, the Veteran should be scheduled for an appropriate examination. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional necessary development, to include as related to the inextricably intertwined issue of entitlement to TDIU. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case (SSOC) and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further review, if warranted. 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 2014). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs