Citation Nr: 1625811 Decision Date: 06/28/16 Archive Date: 07/11/16 DOCKET NO. 11-25 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an initial compensable disability rating for bilateral tinea pedis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Rideout-Davidson, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1963 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2008 and November 2009 rating decisions from the Appeals Management Center in Washington, D.C. and the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, respectively. The Board notes that, in addition to the paper claims file, there are files in Virtual VA and the Veterans Benefits Management System (VBMS). VBMS contains a May 2016 brief submitted by the Veteran's representative. The remainder of the documents in those files are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board finds that a remand is necessary in this case for further development. With regard to the Veteran's bilateral tinea pedis claim, the Board notes that since the Veteran's June 2007 VA examination, he has offered testimony and lay statements that this condition affects his mobility and ability to work and that it causes pain and flare-ups. VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Additionally, review of the medical evidence shows that the Veteran has more than one service-connected medical condition affecting his feet. The Board notes that the Veteran's peripheral neuropathy disorder has been service connected. If the Veteran or his representative believes that pain in the feet is worse as a result of these disorders, they should file a claim for an increase on a form specified by the Secretary. As such, the Board is remanding the Veteran's bilateral tinea pedis claim for a VA examination in order to address and distinguish the symptoms of the Veteran's service-connected bilateral tinea pedis from any other pathology. Further, since the claim is being remanded for further development, the Board notes that since the RO issued the August 2011 statement of the case, the U.S. Court of Appeals issued Johnson v. McDonald, No. 14-2778 (U.S. Vet. App. Mar. 1, 2016), wherein the Court found that use of systemic therapy, such as corticosteroids or other immunosuppressive drugs, as described by the criteria under Diagnostic Code 7806, is inclusive of topical corticosteroids. As such, the examination should also discuss whether any topical steroids are used to treat the Veteran's bilateral tinea pedis. A new opinion for the Veteran's bilateral hearing loss and tinnitus claims must also be obtained. At the November 2009 VA audiology examination, the examiner provided a negative opinion regarding etiology based upon the Veteran's normal hearing at discharge. The Board finds that the 2009 examination was therefore, inadequate for rating purposes. The Board notes that the Veteran submitted a private medical opinion from Dr. J.T. in support of his claim. However, Dr. J.T. did not provide any rationale in support of his opinion and appears to have reviewed only the Veteran's DD214 prior to providing his opinion. Thus, this opinion is also inadequate for rating purposes. A new VA opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his hearing loss, tinnitus and bilateral tinea pedis. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding, relevant VA medical records should also be obtained and associated with the claims file. 2. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any bilateral hearing loss and tinnitus that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. An explanation for all opinions expressed must be provided. The examiner should also note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. It should also be noted that the absence of in service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiner must opine as to whether it is at least as likely as not any diagnosed bilateral hearing loss and/or tinnitus is causally or etiologically related to the Veteran's military service. The examiner should also provide an opinion regarding whether any diagnosed tinnitus is caused or aggravated by the Veteran's bilateral hearing loss. In rendering his or her opinion, 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 the current hearing loss was caused by noise exposure in service as opposed to some other cause. 3. After the above development has been completed, the Veteran should be afforded a VA examination to determine the severity and manifestation of the Veteran's service-connected bilateral tinea pedis. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. An explanation for all opinions expressed must be provided. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should also note that the Veteran has been diagnosed with and granted service-connection for peripheral neuropathy of the lower extremities, including the feet. As such, the examiner is asked to distinguish any reported or diagnosed symptomology as to whether it is related to the tinea pedis or another diagnosed condition. The examiner should review the Veteran's claims file, to include private medical records, VA medical records, testimony, photographs of the skin disorder, and all prior VA and private examinations of the Veteran, and opine as to the nature and extent of the service-connected tinea pedis, for the entire appeals period - from January 16, 2003 to the present. The examiner is asked to specifically comment on the frequency of use of topical corticosteroid creams/gels used by the Veteran for this period, to include noting whether such use occurred for a total duration of less than six weeks during the entire appeals period, for a total duration of 6 weeks or more, but not constantly for the entire appeals period, or whether such use occurred for a total duration of constant or near-constant use for the entire appeals period. See Johnson v. McDonald, No. 14-2778 (U.S. Vet. App. Mar. 1, 2016) (use of topical corticosteroid is systemic therapy). 4. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be noted if any notice that was sent was returned as undeliverable. 5. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 6. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2015).