Citation Nr: 1637876 Decision Date: 09/27/16 Archive Date: 10/07/16 DOCKET NO. 01-03 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and dysthymic disorder. 3. Entitlement to service connection for a respiratory disorder, other than chronic bronchitis. 4. Entitlement to service connection for neuropathy of the feet, to include as secondary to service-connected lumbar spine disability. 5. Entitlement to service connection for a right hip disorder. 6. Entitlement to service connection for a right foot disorder. 7. Entitlement to service connection for a right ankle disorder. 8. Entitlement to service connection for a left ankle disorder. 9. Entitlement to service connection for gout of the hands and feet. 10. Entitlement to service connection for hypertension. 11. Entitlement to service connection for erectile dysfunction. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD J. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1972 to August 1982. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from July 2003, September 2007, and November 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in September 2004, May 2008, January 2010, and February 2012. As noted in the February 2012 remand, the Board bifurcated the Veteran's bilateral hearing loss claim in May 2008, denying entitlement to service connection for right ear hearing loss and for residuals of a perforated left tympanic membrane and remanding the claim of entitlement to service connection for left ear hearing loss. The Veteran did not appeal the Board's denial of his claims for service connection for right ear hearing loss or residuals of a perforated left tympanic membrane. Accordingly, the Board's decision is final with respect to these two claims and only the issue of entitlement to a left ear hearing loss disability remains. The May 2008 Board decision also denied entitlement to service connection for chronic bronchitis. The Veteran did not appeal that decision. Subsequent to the May 2008 Board decision, the Veteran perfected an appeal, which had been pending at the time of the May 2008 decision, regarding entitlement to service connection for asthma. In light of the procedural history of the claim and the Court's holding in Clemons v. Shinseki, 23 Vet App 1 (2009), the claim has been recharacterized as entitlement to a respiratory disorder other than chronic bronchitis. With regard to the Veteran's claim for a right foot and bilateral ankle conditions, those claims were originally denied in a July 2003 rating decision. The RO reconsidered the claims in a November 2007 rating decision, on the basis that the VA had erroneously failed to inform the Veteran of the information needed to support a claim for service connection prior to denying the claims. The November 2007 rating decision again denied the claims. The Veteran timely appealed the denial of those claims. In light of the above, notwithstanding the characterization of the appeals by the RO and in the February 2012 Board remand, the Veteran's pending appeals relate back to his original claims for service connection and the Board need not adjudicate whether new and material evidence has been received to reopen the claims. The March 2015 supplemental statement of the case and VA Form 8 included the issue of entitlement to service connection for a left hip condition, presumably based on the April 2012 examination report notation that the Veteran reported he had a left hip condition and had never intended to file a claim for a right condition. Nevertheless, that issue has not been developed and adjudicated by the RO and is not part of the Veteran's pending appeal. Finally, the Veteran has several issues pending on appeal at the RO, including entitlement to increased rating for a lumbar spine, bilateral knee, and bilateral elbow disabilities; entitlement to service connection for neurogenic claudication; and entitlement to a total rating based on individual employability due to service-connected disabilities, which have not been certified to the Board. Accordingly, those issues will be the subject of a later Board decision, if warranted. The issues of entitlement to service connection for an acquired psychiatric disorder, a respiratory condition other than bronchitis, neuropathy of the feet, a right hip disorder, right foot disorder, bilateral ankle disorders, gout of the hands and feet, erectile dysfunction, and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving all doubt in the Veteran's favor, his current left ear hearing loss disability is at least as likely as not related to his active service. CONCLUSION OF LAW The criteria for establishing service connection for a left ear hearing loss disability have been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection for Left Ear Hearing Loss The Veteran seeks service connection for left ear hearing loss that he reports experiencing during and since his military service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2015); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2015). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system. 38 C.F.R. §§ 3.307, 3.309(a) (2015). Sensorineural hearing loss is such an organic disease. The medical evidence of record confirms that the Veteran is diagnosed with a left ear hearing loss disability. The Veteran's DD Form 214 and service personnel records indicate that he served as a fire support specialist, mortar carrier driver, and mortar gunner. Accordingly, in-service noise exposure is conceded. Moreover, the Veteran's service treatment records document symptomatology related to decreased hearing acuity, ear pain, and ear infections. Specifically, a June 29, 1976 service treatment record indicated that the Veteran was diagnosed with otitis media; a September 6, 1979 record indicated that the Veteran reported decreased hearing for approximately one month; a September 24, 1979 record indicates that the Veteran was assessed with mobile tympanic membranes; and an October 21, 1981 record indicated that the Veteran reported ear pain and was diagnosed with external otitis media. Moreover, a comparison of the Veteran's January 1972 enlistment examination and August 1982 discharge examination indicates that there were 10-15 decibel threshold shifts in the Veteran's left ear hearing acuity at 1000, 2000, and 4000 hertz. Accordingly, the Board finds that the first and second elements for service connection are satisfied. With regard to the final requirement, a nexus to service, the record contains conflicting medical opinions. However, as noted in the prior remands the negative VA audiological opinions prior to February 2012 have been found inadequate for adjudicating the claim. The record contains two audiological reports subsequent to the February 2012 remand. In an April 2012 VA audiological examination report, the audiologist diagnosed the Veteran with left ear sensorineural hearing loss. In the remarks section the examiner noted that the Veteran had a history of chronic ear infection beginning with a left tympanic membrane perforation while in service and his hearing fluctuated during service but was within normal limits at separation. The audiologist further noted that the Veteran currently had mild left ear hearing loss and continued to have a left tympanic membrane perforation; therefore, his hearing loss seemed to be medical in nature beginning with the tympanic membrane perforation. Based on this, the examiner opined that the Veteran should be evaluated by an ear, nose, and throat (ENT) specialist in order to obtain an opinion regarding the etiology of the Veteran's left ear hearing loss. The April 2012 examiner did not render an etiological opinion regarding the Veteran's left ear hearing loss. In February 2015 the Veteran was afforded another VA audiological examination. The examiner diagnosed the Veteran with left ear conductive hearing loss. The examiner noted that the Veteran had a permanent positive threshold shift greater than normal in the left ear during service. The examiner opined that the Veteran's left ear hearing loss was at least as likely as not caused by or the result of his military service. In support of that opinion the examiner noted that the Veteran's hearing was normal at induction and separation. However, the Veteran served in an artillery unit and while not in combat was exposed to noise from blasts and artillery and reported bleeding from his left ear during service. The examiner also noted there was a shift in his hearing acuity between his induction and separation, and that he had a history of outer and middle ear issues and infections during active duty with documented fluctuations in hearing during service. The examiner noted that the Veteran's current left ear hearing loss was conductive in nature, which was typically due to a middle ear condition. The examiner further noted that complete hearing tests, with air and bone conduction, were not performed during service. In closing, the examiner stated that further evaluation and opinion on the Veteran's medical condition of the ear was again deferred to an ENT specialist. As the negative opinions prior to February 2012 were found inadequate in the prior Board remands, those opinions are not probative. With regard to the April 2012 examination report, while the examiner discussed the Veteran's hearing loss the examiner did not actually render a nexus opinion. With regard to the February 2015 VA examination report, the examiner acknowledged that further evaluation by an ENT specialist was warranted, but opined that the Veteran's current left ear hearing loss was at least as likely as not related to service. Although the examiner incorrectly noted that the Veteran's hearing was within normal limits at separation, the fact that the Veteran's hearing was abnormal at 500 and 1000 hertz, strengthens rather than undermines the examiner's positive opinion. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (noting that the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss). Accordingly, notwithstanding the February 2015 examiner's inaccurate statement regarding the Veteran's hearing acuity at separation, as the examiner provided a definitive opinion that was otherwise supported by a factually accurate and detailed rationale it is afforded significant probative value. After a careful review of the record, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran's left ear hearing loss disability is related to his military of service. Therefore, service connection for left ear hearing loss is warranted. ORDER Entitlement to service connection for a left ear hearing loss disability is granted. REMAND Review of the claims file indicates that there are outstanding VA and private treatment records. A June 30, 2005 VA treatment record indicated that a January 2005 lower extremity nerve conduction study had been scanned into VistA and a June 23, 2006 VA treatment record indicated that unidentified non-VA medical records from June 17, 2006 were scanned into VistA Imaging. However, the referenced records do not appear to have been associated with the virtual claims file. Additionally, in October 2013, the Veteran submitted a VA Form 21-4142 authorizing VA to obtain records from Dr. A. C. While the release indicated that these records pertained in pertinent part to his low back, which the Veteran has asserted is the cause of his lower extremity neuropathy, records obtained from the Social Security Administration indicated that Dr. A. C. is the Veteran's primary care provider and treated him for other conditions on appeal. Additionally, a May 15, 2014 VA treatment record indicated that the Veteran was still followed by Dr. G. F. for his right leg neurological symptoms. Complete treatment records from the above providers have not been associated with the record. Accordingly, on remand reasonable efforts should be made to obtain all outstanding private treatment records. There also appear to be outstanding service treatment records pertinent to the Veteran's claim for an acquired psychiatric disorder and a respiratory disorder other than bronchitis. Specifically, at his April 2012 VA mental conditions examination the Veteran reported the he received psychiatric treatment during service in 1974 because he was having nightmares about dead people. Additionally, a March 1973 discharge summary indicated that the Veteran was hospitalized for pneumonia from March 23, 1973 to March 28, 1978. As psychiatric service treatment and inpatient clinical records may be kept separately from other service treatment records, a request for any psychiatric treatment and inpatient treatment records should be made through official sources. Further development is required to corroborate the Veteran's reported in-service PTSD stressor. In an April 2009 VA memorandum, the RO found there was insufficient information to send to the Joint Service Records Research Center (JSRRC) to corroborate the Veteran's reported in-service stressors because the Veteran could not narrow the date of the incident to a two-month range. In Gagne v. McDonald, the Court of Appeals for Veterans Claims required VA to submit to the JSRRC multiple requests for records of a stressor event, each request encompassing a different 60-day period, to cover the relevant period. 27 Vet. App. 397 (2015). See also 38 C.F.R. § 3.159(c) (2015). As the Veteran is diagnosed with PTSD based on reported in-service stressors, such development is required. The Board notes that the Veteran reported additional in-service stressors at his April 2012 VA mental conditions examination, which have not been developed. Accordingly, on remand the RO should also undertake all appropriate development to verify the additional stressors reported in the April 2012 VA mental conditions examination report. In April 2012 and February 2015, the Veteran was afforded VA mental disorders, general medical, and male reproductive examinations in accordance with the Board's February 2012 remand instructions. With regard to the Veteran's claim for an acquired psychiatric disorder, neither the April 2012 nor February 2015 mental disorders examination reports addressed or otherwise acknowledged the relationship to service, if any, of the Veteran's psychiatric diagnoses of record, other than PTSD. In this regard, for purposes of service connection, there need only be a diagnosed disability at some point during the course of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the current disability requirement is satisfied when a disability is shown during the course of a claim, even if it subsequently resolves while the claim is still pending). As the Veteran's VA treatment records also note diagnoses including but not limited to major depressive disorder, anxiety state, and dysthymic disorder, the Board finds that an addendum opinion is needed. With regard to the Veteran's claims for a respiratory condition and neuropathy of the feet, the February 2012 remand directed that EMG, nerve conduction studies, and pulmonary function tests must be completed. The April 2012 VA general medical examination indicated EMG, NCS, and PFTs were not performed but did not explain why. With regard to the Veteran's neuropathy, the absence of the specified testing is particularly noteworthy because examiner acknowledged the Veteran's subjective complaints of paresthesia, but opined there was insufficient evidence to substantiate a diagnosis of neuropathy. With regard to the Veteran's respiratory condition claim, the examination report indicated that an opinion and definitive diagnosis would be submitted after a review of the Veteran's PFTs; as no PFT was completed the examiner did not render a nexus opinion regarding the Veteran's respiratory disorder. Additionally, the examiner did not acknowledge or otherwise address the VA diagnosis of chronic obstructive pulmonary disease (COPD). See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, on remand the Veteran should be provided VA respiratory and peripheral nerve examinations and the testing specified in the April 2012 remand should be performed with the Veteran's consent. If the Veteran does not consent to the testing, the examination report should document that fact. With regard to the Veteran's claim for a right hip condition, as noted above the April 2012 VA examination report indicated that the Veteran reported it was his left rather than his right hip that had pain. Nevertheless, as the right hip not the left hip is on appeal and the Veteran's service treatment and VA treatment records document right hip symptomatology, on remand the Veteran should be afforded another VA examination to determine the nature and relationship to service, if any, of any right hip condition. With regard to the Veteran's claim for a right foot condition and bilateral ankle conditions, the April 2012 examination report indicated that the Veteran did not have and had never had an ankle condition. Nevertheless, a January 28, 2009 VA treatment record indicated that the Veteran had left ankle Achilles tendonitis and x-ray studies conducted in conjunction with the April 2012 examination revealed right ankle enthesopathy at the medial malleolus, degenerative changes of the mid-foot bilaterally, and hallux valgus. However, the examiner did not provide opinions addressing the relationship, if any, between the aforementioned diagnoses and the Veteran's military service. Accordingly, on remand addendum opinion are warranted. With regard to the Veteran's claim for erectile dysfunction, the Veteran was provided a VA examination in February 2015. The examiner opined that the Veteran's erectile dysfunction was less likely than not related to service. In support of that finding, the examiner noted that there was clear evidence of hypogonadism and a previous diagnosis of psychosexual dysfunction since 2004. However, the examiner did not explain the medical significance of those findings. Additionally, while the February 2012 remand directed that the examiner review all pertinent records associated with the claims file, the February 2015 examination report indicates that the examiner did not review the Veteran's claims file and only reviewed the Veteran's VA treatment records. In light of the above, an addendum opinion is required. With regard to the Veteran's hypertension, the examiner confirmed the Veteran's diagnosis of hypertension and opined that it was less likely than not related to service. In support, the examiner indicated that while the Veteran had mildly elevated blood pressure readings during service, his blood pressure was within normal limits at separation. The Board notes that the examiner did not explain why the Veteran's in-service elevated readings were not significant or address the Veteran's assertion that he was diagnosed with hypertension in 1982 after his discharge from the military. As examiner's rationale was conclusory and the February 2012 remand directed that the examiner should identify when the disorder manifested, an addendum opinion is warranted. Accordingly, the case is REMANDED for the following actions: 1. Obtain all VA treatment records from January 28, 2016 to present, to include the records referenced in the June 30, 2005 and June 23, 2006 VA treatment record that were scanned into VistA. These records must be made a part of the Veteran's file so that they can be reviewed by the Board. 2. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his disabilities on appeal, including records from Dr. A. C. and Dr. G. F. After securing the necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. If any requested records cannot be obtained, the Veteran should be notified of such. 3. Request any in-service psychiatric treatment records and inpatient clinical records for the Veteran's hospitalization for pneumonia from March 23, 1973 to March 28, 1973 at the Nuremberg Army Hospital through official sources. If additional information is needed from the Veteran to request such records, the Veteran should be asked to provide it. All efforts to obtain such records should be documented in the claims file. If the requested records do not exist or cannot be obtained, the Veteran should be notified of such. 4. Attempt to corroborate the Veteran's claimed stressor(s), as reported in the September 2008 VA Form 21-0781 and April 2012 VA mental conditions examination report. Unless it is determined that there is not enough information to make an inquiry for reasons other than the time period identified by the Veteran, multiple requests should be submitted to the JSRRC related to the stressor event(s), each request encompassing a different 60-day period, to cover the period of the Veteran's service in Germany from August 1978 to July 19, 1981, to include verifying any period of temporary duty in Greece for war games. 5. Return the claims file to the VA examiner who conducted the April 2012 or February 2015 VA mental disorder examiner, if available, to obtain an addendum opinion. If the original examiner is not available, forward the claims file to an appropriate examiner to obtain the requested opinion. If a new examination is deemed necessary, one should be scheduled. Following review of the claims file, the examiner should provide an addendum opinion addressing the following: Please address the diagnoses of record, including the September 8, 2008 and December 15, 2009 VA treatment records noting diagnoses of anxiety state, major depressive disorder, and dysthymic disorder, and provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the condition is related to the Veteran's active service. A complete rationale for any opinion must be provided. 6. Schedule the Veteran for a VA examination to address his claim for service connection for a respiratory condition, other than bronchitis. The claims file must be reviewed in conjunction with the examination. Any tests deemed necessary, to include a pulmonary function tests, should be conducted if the Veteran consents, and all clinical findings should be reported in detail. If the Veteran does not consent that fact should be documented in the examination report. Following review of the claims file and examination of the Veteran, the examiner should provide the diagnosis for any respiratory condition identified during the pendency of the appeal, other than bronchitis. Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any such respiratory condition was incurred in or is otherwise related to active service. A complete rationale for any opinion must be provided. 7. Schedule the Veteran for a VA examination to address his claim for service connection for neuropathy of the feet. The claims file must be reviewed in conjunction with the examination. Any tests deemed necessary, to include EMG and NCS, should be conducted if the Veteran consents, and all clinical findings should be reported in detail. If the Veteran does not consent that fact should be documented in the examination report. Following review of the claims file and examination of the Veteran, the examiner should: a. Provide the diagnosis for any peripheral nerve condition identified during the pendency of the appeal. b. State whether it is at least as likely as not (50 percent probability or greater) that any such condition was incurred in or is otherwise related to active service. c. State whether it is at least as likely as not (50 percent probability or greater) that any such condition was caused or aggravated (permanently worsened beyond the natural progression of the disease) by the Veteran's service-connected lumbar spine disability. A complete rationale for any opinion must be provided. 8. Schedule the Veteran for a VA examination to address his claim for service connection for a right hip condition. The claims file must be reviewed in conjunction with the examination. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any right hip condition was incurred in or is otherwise related to active service. In rendering the above requested opinion, the examiner should address the March 22, 1977 service treatment record noting pulled right thigh muscle; the November 6, 1978 service treatment record noting right groin pain and tenderness with left thigh adduction; and the February 11, 1981 service treatment record noting right lateral hip pain. A complete rationale for all opinions expressed should be provided. 9. Return the claims file to the VA examiner who conducted the April 2012 VA general medical examination, if available, to obtain addendum opinions regarding the Veteran's right foot and bilateral ankles. If the original examiner is not available, forward the claims file to an appropriate examiner to obtain the requested opinion. If a new examination is deemed necessary, one should be scheduled. Following review of the claims file, the examiner should provide an addendum opinion addressing the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left ankle Achilles tendonitis or right ankle enthesopathy at the medial malleolus is related to the Veteran's active service. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral degenerative changes of the mid-foot and bilateral hallux valgus condition are related to the Veteran's active service. A complete rationale for all opinions expressed should be provided. 10. Return the claims file to the VA examiner who conducted the February 2015 VA examination, if available, to obtain addendum opinion regarding the erectile dysfunction. If the original examiner is not available, forward the claims file to an appropriate clinician to obtain the requested opinion. If a new examination is deemed necessary, one should be scheduled. Following review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction was incurred, caused by, or otherwise related to his active service. A complete rationale for all opinions expressed should be provided. 11. Return the claims file to the VA examiner who conducted the April 2012 VA examination, if available, to obtain addendum opinion regarding the Veteran's hypertension. If the original examiner is not available, forward the claims file to an appropriate clinician to obtain the requested opinion. If a new examination is deemed necessary, one should be scheduled. Following review of the claims file, the examiner should: a. State whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was incurred, caused by, or otherwise related to his active service. The examiner should explain the significance or lack thereof of the Veteran's in-service elevated blood pressure readings. b. State when the Veteran's hypertension manifested, and opine whether it at least as likely as not (50 percent or greater probability) that hypertension manifested to a compensable degree prior to August 31, 1983. A complete rationale for all opinions expressed should be provided. 12. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). (CONTINUED ON NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs