Citation Nr: 1645345 Decision Date: 12/02/16 Archive Date: 12/19/16 DOCKET NO. 14-40 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to a compensable initial rating for a right knee strain. 2. Entitlement to a compensable initial rating for hemorrhoids. 3. Entitlement to a compensable initial rating for dystrophy of the nails of the great toes. 4. Entitlement to service connection for a left knee disability. 5. Entitlement to service connection for headaches, to include as secondary to service-connected traumatic brain injury (TBI). 6. Entitlement to service connection for a bilateral hearing loss disability. 7. Entitlement to service connection for residuals of a right wrist lesion. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Anderson, Associate Counsel INTRODUCTION The Veteran had active service from June 1982 to July 1992, January 2002 to October 2002, February 2004 to April 2004, and May 2013 to August 2013. He also had service with the Alaska Air National Guard, to include periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2014, May 2014, and July 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. In August 2015, the Veteran testified before the undersigned Veterans' Law Judge at a videoconference hearing. A transcript of that proceeding is of record. REMAND Although further delay is regrettable, additional development is required prior to the Board's adjudication of the Veteran's claims. The record reflects that additional development is required to ensure that all of the Veteran's dates of service have been verified and that complete medical records pertaining to his most recent period of Federal Service have been obtained. Specifically, at his December 2013 VA audiological evaluation, the Veteran reported that he had worked full-time with the Alaska Air Guard from 1992 to present. The M21-1, Part III, subpart ii, 6.A.4.b-c notes that full-time National Guard service is considered "ADT" or ACDUTRA under 38 U.S.C.A. § 101 (22)(C) (West 2014) if performed under 32 U.S.C. §§ 316, 502, 503, 504, or 505 (West 2014). The record contains some Alaska Air National Guard personnel records which verify some, but not all, of the Veteran periods of ACDUTRA and INACDUTRA. Additionally, it appears that the Veteran's medical records pertaining to his most recent his period of Federal Service have not been obtained. Specifically, while additional records were received in May 2014, after the completion of his most recent period of Federal Service, those records do not contain any service treatment records dated between May 2013 and August 2013. Accordingly, on remand any periods of service in the Alaska Air National Guard must be verified and all outstanding service treatment records should be obtained. There also appear to be outstanding post-service treatment records. At his August 2015 hearing the Veteran testified that he recently received treatment at the VA clinic in Fairbanks, the Tanana Chiefs Clinic, and a clinic at the North Pole. An April 11, 2014, VA treatment record indicates that the Veteran had been assigned to a primary care provider outside of VA, specifically Tanana Chiefs Conference. A May 15, 2014, treatment record notes that a non-VA primary care consultation had been placed. However, VA treatment records subsequent to May 15, 2014, including the referenced non-VA primary care consultation report, have not been associated with the record. Additionally, at his August 2015 hearing the Veteran testified that he recently received treatment for his wrist lesions at the Eielson Air Force Base. To date, records from this provider subsequent to July 2009 have not been obtained. With regard to the Veteran's increased rating claims for hemorrhoids and a right knee strain, the Board finds that these conditions may have worsened since the Veteran's last VA examinations. With regard to his hemorrhoids, the December 2013 VA examination report indicates that the Veteran had been diagnosed with hemorrhoids, but notes that the Veteran did not have any findings, signs, or symptoms attributable to that diagnosis. However, in a July 2014 statement the Veteran reported that he had frequent hemorrhoid reoccurrences, which were so severe that he had to wear protective material to prevent damaging his clothing. Additionally, at his August 2015 hearing he testified that his hemorrhoid bleeding had worsened since his last VA examination. With regard to his right knee strain, the Veteran testified that he now experienced right knee popping, locking, and buckling. The July 2014 examination report is silent for the above symptoms. Where the evidence indicates a disability has worsened since the last VA examination, a new examination is required. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Based on the foregoing, new VA examinations are warranted to assess the nature and severity of the Veteran's hemorrhoids and right knee strain. With regard to the Veteran's claim for service connection for a left knee disability, the RO requested a medical opinion addressing whether any left knee disability was related to service. In a March 2014 opinion, a VA clinician stated that the Veteran's left knee was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The clinician stated that the Veteran's service treatment records showed that he, "injured the right leg when jumped at home 6/3/1987 and twisted the right leg while running in 7/3/1983." The clinician noted that current examination and X-rays were normal and that the minimal degenerative changes seen on the X-ray were not representative of degenerative joint arthritis since the joint spaces were preserved. While the clinician rendered a negative opinion regarding the Veteran's claimed left knee condition, the rationale exclusively addressed Veteran's right knee and did not address the Veteran's left knee and leg symptomatology during service. As such, the clinician's rationale is inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (stating when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board acknowledges that the Veteran was afforded another VA knee examination in July 2014, at which time he was diagnosed with a left knee strain and left knee arthritis. Nevertheless, as the examiner did not address the etiology of those diagnoses, an addendum opinion is required. With regard to the Veteran's claim for service connection for service connection for headaches, the Veteran asserts that his ongoing headaches are related to his in-service head injury or secondary to his service-connected TBI. The Veteran was provided a VA TBI examination in December 2013, at which time he reported that he needed glasses after his head injury due to headaches. The examiner did not indicate whether the Veteran currently had headaches as a residual of his TBI. In a March 2014 addendum, the TBI examiner acknowledged that the Veteran endorsed experiencing headaches but noted that this examiner did not perform medical evaluations and that the examiner who performed the medical portion of the TBI examination would be needed to make a definitive diagnosis. In a May 2014 addendum opinion, a VA clinician noted that the Veteran endorsed headaches during the TBI examination, but stated that his headaches resolved once new eye glasses were prescribed. The examiner stated that the Veteran's remote headaches were unrelated to his head trauma. The Board finds that the clinician's opinion is conclusory, and unsupported by any rationale. Moreover, the clinician did not address the lay evidence from the Veteran regarding ongoing headaches. Accordingly, an addendum opinion is warranted. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With regard to the Veteran's claim for service connection for a bilateral hearing loss disability, the Veteran was provided a VA audiological examination in December 2013. Addendum opinions were obtained in March 2014 and January 2015. Initially, the Board notes that none of the audiological opinions addressed the Veteran's periods of ACDUTRA or INACDUTRA. Additionally, the March 2014 and January 2015 audiologists' opinions are in conflict regarding the significance, if any, of the December 2004 service treatment record notation regarding a threshold shift. Specifically, the March 2014 opinion indicates that while a significant threshold shift was noted on a December 2004 hearing evaluation, the shift was determined by comparing the current results to the hearing acuity threshold established in June 1997, rather than comparing it to the more recent hearing evaluation performed in September 2003. Thereafter, the audiologist implicitly dismissed the December 2004 service treatment record as non-significant. In contrast, in the January 2015 tinnitus addendum the VA audiologist noted that there was a significant threshold shift demonstrated on the December 2004 service treatment record and that the Veteran was thereafter placed on a hearing profile. As the VA audiologists interpreted the significance of the December 2004 hearing acuity shift differently, but neither explained why the shift was or was not significant, an addendum opinion is required. With regard to the Veteran's claim for service connection for residuals of a right wrist lesion, he was provided a VA examination in December 2013. The examiner noted that the Veteran was diagnosed with cellulitis in 1994, which subsequently resolved. The examiner indicated that the condition was at least as likely as not incurred in or caused by service. In support of that finding, the examiner noted that the Veteran was treated for a finger infection without any residuals in September 1992. Initially, the Board notes that the examiner's rationale is internally inconsistent regarding the dates of the Veteran's diagnosis. Moreover, the examiner indicated that the condition had resolved without any residuals. However, the Veteran has reported that the lesion on his wrist turned into a rash and that he currently had bumps on his hand. Accordingly, a VA examination is warranted to determine, whether the Veteran has any residuals of his in-service wrist lesion / rash. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake all indicated development to verify the Veteran's periods of active duty, active duty for training, and inactive duty training while a member of the Alaska Air National Guard. 2. The RO or the AMC should undertake all indicated development to obtain complete medical and personnel records for the Veteran's service in the Alaska Air National Guard. Development to obtain such records should continue until the required records are received or it is determined that further development to obtain the records would be futile. In any event, the RO or the AMC should request the Veteran to provide a copy of any Alaska Air National Guard records in his possession. 3. The RO or the AMC should undertake appropriate development to obtain any other outstanding records pertinent to the Veteran's claims, including all outstanding treatment records from the Anchorage VAMC, to include any fee basis treatment records, dated from May 15, 2014 to the present, and any relevant outstanding records from Eielson Air Force Base. 4. After the above is completed to the extent possible, the RO or the AMC should afford the Veteran a VA examination to assess the severity of his service-connected hemorrhoid disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. 5. The RO or the AMC should afford the Veteran a VA examination to determine the current nature and severity of his service-connected right knee strain. The claims file should be reviewed in conjunction with the examination. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. In particular, the examiner should be directed to perform range of motion testing to determine the extent of limitation of motion due to pain on active motion and passive motion, and with weight-bearing and without weight-bearing. The examiner should also be directed to perform the same range of motion tests for the Veteran's right knee. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 6. Obtain an addendum opinion from the clinician who authored the July 2014 VA knee and lower leg examination report, or an appropriate substitute. The RO or the AMC should inform the clinician of the Veteran's verified periods of active duty, and any periods of active duty for training or inactive duty for training in the Alaska Air National Guard. a. The examiner should identify all left knee disorders present during the period of the claim. b. For each such disorder, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that it began during a period of active service, was caused by a period of active service, or is otherwise related to a period of active service. c. The examiner should also state for each such disorder whether it is at least as likely as not that the disorder is related to a disease or injury incurred during ACDUTRA or an injury incurred during INACDUTRA. The rationale for all opinions expressed must also be provided. If the clinician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the clinician should identify the additional information that is needed. 7. Obtain an addendum opinion from the clinician who authored the May 2014 VA headaches addendum, or an appropriate substitute. a. The clinician should state an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any headache disability began during a period of active service, was caused by a period of active service, or is otherwise related to a period of active service, to include the Veteran's in-service head injury. b. The clinician should also state an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any headache disability was caused or aggravated by the Veteran's service-connected TBI residuals. The rationale for all opinions expressed must also be provided. If the clinician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the clinician should identify the additional information that is needed. 8. Obtain an addendum opinion from the audiologist who prepared the March 2014 or January 2015 audiology report, or an appropriate substitute. All pertinent evidence of record must be provided to and reviewed by the VA examiner. The RO or the AMC should inform the examiner of the Veteran's verified periods of active duty, active duty for training, and inactive duty for training in the Alaska Air National Guard. Based on the review of the Veteran's pertinent history, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's bilateral hearing loss is related to acoustic trauma during the Veteran's active duty, active duty for training, and/or inactive duty for training in the Alaska Air National Guard. The rationale for all opinions expressed must also be provided. If the clinician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the clinician should identify the additional information that is needed. 9. The Veteran should be afforded a VA examination by an examiner with sufficient expertise to determine the nature and relationship to service of his claimed wrist lesion residuals. All pertinent evidence of record must be provided to and reviewed by the VA examiner. Any indicated tests and studies are to be performed. a. The examiner should identify any residuals of the Veteran's in-service wrist lesion condition that have been present during the period of the claim. b. For any identified residual, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that it began during a period of active service, was caused by a period of active service, or is otherwise related to a period of active service. c. The examiner should also state an opinion as to whether it is at least as likely as not that any diagnosed residual is related to a disease or injury incurred during a period of active duty for training or an injury incurred during a period of inactive duty training. The rationale for all opinions expressed must also be provided. If the clinician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the clinician should identify the additional information that is needed. 10. The RO or the AMC also should undertake any other development it determines to be warranted. 11. Then, the RO or the AMC should readjudicate the issues on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 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). _________________________________________________ Shane A. Durkin 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) (2016).