Citation Nr: 1752922 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-06 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for a lumbar spine disorder. 3. Entitlement to service connection for left and right knee disorders. 4. Entitlement to service connection for left and right foot disorders. 5. Entitlement to service connection for a bilateral hearing loss. 6. Entitlement to service connection for tinnitus. 7. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. 8. Entitlement to a total disability evaluation based upon individual unemployability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Counsel INTRODUCTION The Veteran served a period of honorable active duty service from January 1973 to January 1979. The Veteran's discharge from his period of service from January 1979 to July 1983 was under other than honorable conditions and has been found to be a bar to VA benefits. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2017, the Veteran attended a Board hearing before the undersigned. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Cervical Spine, Lumbar Spine, and Bilateral Foot Disorders At the May 2017 Board hearing, the Veteran testified that he had flat feet upon entrance into service, and that while in the service his foot condition was made worse by the wear and tear of infantry duties, including walking and jumping out of helicopters. He stated that he went to medical for treatment about six or seven times, and that he was frequently given profiles for his foot problems. He said that after service, he first received treatment for his feet about 20 years after separation. The Veteran also stated that he slipped and hurt his back and neck in Germany, and that he was given profiles for his back. He indicated that the strain of long marches carrying heavy equipment may also have damaged his back, and stated that neck pain has flared up about every six months since then. In a January 2011 letter, the Veteran stated that he injured his back when he fell in 1978, and that his back has gotten progressively worse. The Veteran's service treatment records include his January 1973 entrance examination, which diagnosed pes planus. In July 1974, the Veteran was treated for painful blisters on the base of both feet. In January 1976, the Veteran complained of back pain and was diagnosed with lumbar muscle spasm. Pes planus was again found during the Veteran's December 1976 examination. In October 1977, the Veteran reported pain in his neck and back. He reported having an old injury in Germany when he hurt his back after falling on a track. He was diagnosed with a muscle strain. The Veteran's current VA treatment records show that he has been diagnosed with cervical, thoracic, and lumbar segmental dysfunction. December 2009 X-rays showed mild thoracolumbar scoliosis and mild lumbar spondylosis. The Veteran attended a VA examination in August 2011. The examiner diagnosed cervical and lumbar degenerative disk disease, bilateral hallux valgus, and metatarsalgia. The examiner opined, however, that these conditions were less likely than not related to the Veteran's military service. His only rationale was that the separation examination documented spine and feet within normal limits. The examiner did not discuss any of the Veteran's in-service complaints of back or neck pain, or whether the appellant's preexisting pes planus was permanently aggravated by service. It is also unclear which separation examination the examiner is referencing, as the Veteran had several periods of service and a separation examination from his period of service ending in 1979 does not appear to be of record. As the examiner's rationale is found to be inadequate, the Board remands these issues to obtain a new, sufficient VA examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Bilateral Knee Disorder The Veteran also contends that a current bilateral knee disability is related to an injury incurred during his period of honorable service. The Veteran testified at a May 2017 Board hearing that he slipped and hurt his knee once in Germany in around 1975 or 1976. He stated that he was given a knee brace and medication at that time. He said that he also did a lot of running in service that would put strain on his knee and cause it to flare up. The Veteran's treatment records do show that he has a current right and left knee disability. A December 2009 X-ray of the left knee showed mild tricompartmental degenerative changes and probable small osteochondroma. October 2010 X-rays showed degenerative changes in both knees. The Board notes that the only notations relating to a knee injury in the Veteran's service treatment records occurred in March and April 1982, when the appellant received treatment for a knee injury incurred during football. An October 1989 Administrative Decision found that the Veteran's period of service ending in July 1983 was under other than honorable conditions for VA purposes and is a bar to VA benefits, noting that the appellant had requested and received an other than honorable discharge in July 1983 due to 182 days of consecutive absence without leave. See 38 C.F.R. § 3.12(c)(6) (2017) (A discharge under other than honorable conditions issued as a result of absence without leave for a continuous period of at least 180 days may be a bar to benefits.). It noted that insanity was not an issue. The question therefore is limited to whether the Veteran has a current right or left knee disability that is related to any event or injury in his period of service from January 1973 to January 1979. Because the Veteran stated at the May 2017 Board hearing that he had been told by his treating VA physicians that his knee disorders were related to his service and that this opinion was recorded in his VA treatment records, the issues are remanded so that all of the Veteran's VA treatment records can be obtained and reviewed. If, and only if, these VA treatment records contain probative medical evidence indicating that there may be a nexus between the Veteran's current disability and an injury during his first period of service, then a VA medical opinion should be obtained to fully address that possible relationship. Acquired Psychiatric Disorder The Veteran also contends that entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder, is warranted. The Veteran testified in May 2017 that his sister was murdered in 1975 and his girlfriend committed suicide in 1976, and that these events greatly changed his mental health. He stated that he did see a psychiatrist in 1976 and possibly in 1979 and 1980, while he was in Germany, and was told that he had schizophrenia. The Veteran said that he started hearing and seeing things that were not there in the 1970s, and that these hallucinations became worse as he got older. He also stated that it was very stressful working at a missile site in service, and that he had been an outstanding soldier until these deaths changed him. He said that he has frequent nightmares about service. In an October 2010 statement, the Veteran wrote that his psychiatric problems started due to the stress of working in a live missile silo in Germany. The Veteran's nephew submitted a statement describing how his uncle became a changed person after service, showing more behavioral instability and reckless behavior, and wrote that he believed the stressors and unpredictable nature of military life caused this. The Veteran's service treatment records show no complaints or notations of psychiatric problems during his honorable period of service. Treatment records from 1982 show only problems related to alcohol and drug abuse. The Veteran attended a VA examination in July 2011. The Veteran reported that he started feeling paranoia while serving in Germany in 1979. The Veteran reported that his stressors in service were the death of his sister and a violent fight with a fellow soldier. The examiner found that the Veteran had not been exposed to a traumatic event sufficient to meet the criteria of a stressor for posttraumatic stress disorder. He diagnosed the Veteran with a psychotic disorder by history. The examiner also noted a long standing history of polysubstance abuse. An addendum medical opinion was obtained in October 2012 because the prior examiner did not have access to the claims file. The examiner confirmed the prior finding that the Veteran's symptoms did not meet the diagnostic criteria for a diagnosis of posttraumatic stress disorder. A May 2008 mental health evaluation also discussed the Veteran's claimed in-service stressors, but also found that he did not meet the criteria for a diagnosis of posttraumatic stress disorder. While the Veteran has been found not to meet the criteria for a diagnosis of posttraumatic stress disorder, he clearly does have other psychiatric diagnoses. The Veteran's VA treatment records show that he has been diagnosed with psychotic, depressive and schizoaffective disorders. A December 2009 Social Security Administration evaluation diagnosed the Veteran with a schizoaffective disorder bipolar type with psychotic symptoms. The issue on appeal has therefore been expanded to consider whether service connection is warranted for any of the Veteran's psychiatric diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The prior VA examiners did not consider the Veteran's other diagnoses or provide any opinion regarding their etiology or relationship to service. The Board therefore remands this issue for a new VA examination and opinion. Hearing Loss and Tinnitus The Veteran stated in May 2017 that he had to fire weapons in service, that riding in an armored personnel carrier was very noisy, and that the generators he worked around were also very loud. He denied using ear protection when in the field. The Veteran stated that he had constant ringing in his ears and that he first noticed the ringing while he was still in service. He said that he mentioned it to medical services in service and was given a hearing test, that even in service he could not always hear people when they spoke to him, and that it became worse as he got older. The Veteran's personnel records do show that his principal duties during his honorable period of service included several years as a grenadier. At an August 2011 VA examination, the examiner was unable to test the Veteran's hearing because he appeared to be medicated during the test procedures. Further, the examiner found that the appellant "was inconsistent with his responses and his attention would consistently fade during pure tone testing." The examiner opined that tinnitus was less likely than not related to service because there were no documented complaints of tinnitus in the service treatment records and his subjective onset of tinnitus was within the past four years. The Veteran's VA treatment records show that he was actively struggling with psychotic symptoms around this time. In earlier psychiatric treatments, the Veteran had reported feeling overly sedated, and not long after the August 2011 VA examination, his anti-psychotic medication was changed. The Board therefore accepts that the Veteran may have been unable to properly cooperate with the audiological testing at the August 2011 examination, and will remand this issue to give him another opportunity to have his hearing levels tested. The Board also requests that the examiner provide a new medical opinion regarding the etiology of tinnitus and its relationship to service, as the Veteran has asserted that he did experience symptoms of ringing in his ears in service. See Charles v. Principi, 16 Vet. App. 370 (2002) (A Veteran is competent to identify tinnitus by its observable manifestations, as such condition is readily observable and does not require medical expertise to establish its existence.). Total Disability Rating Based on Individual Unemployability A decision cannot be entered on the claim of entitlement to a total disability evaluation based on individual unemployability due to service-connected disorders until the remaining issues have been resolved. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Request all relevant VA treatment records from the Dallas VA Medical Center and its affiliated facility in Fort Worth, Texas, prior to January 1990 and since July 2012. All records obtained should be associated with the claims file. If the AOJ cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. After all VA treatment records have been associated with the claims file; if, and only if, the records contain probative medical evidence indicating that there may be a nexus between the Veteran's current knee disability and an injury during his first period of service, then a VA medical opinion should be obtained to fully address the likely etiology of any diagnosed knee disability. The examiner must specify in the report that all VBMS records have been reviewed. The examiner must discuss whether the Veteran's right and left knee degenerative joint disease as likely as not (a 50 percent or greater probability) had its onset during, or is otherwise related to any event or injury only during the Veteran's period of service from 1973 to 1979. The examiner should address the Veteran's assertion that he injured his knees at the same time he injured his back when he fell in service in 1976. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 3. Schedule the Veteran for an appropriate VA orthopedic examination with a qualified examiner to address the nature and etiology of any diagnosed lumbar spine, cervical spine, and bilateral foot disabilities. The examiner must specify in the report that all VBMS records have been reviewed. Any indicated evaluations or studies should be conducted. Based on examination findings, medical principles, and historical records, including available service treatment records, the examiner should address the following: a) What are the Veteran's current diagnoses pertaining to the cervical spine, lumbar spine, and bilateral feet? b) For each and every diagnosed disorder address whether it is at least as likely as not that the disorder had its onset during, or is it otherwise related to any event or injury in the Veteran's period of military service from 1973 to 1979? Please specifically address all reports of foot, back, and neck treatment during the Veteran's service from 1973-1979, including, but not limited to: i) July 1974 treatment for painful foot blisters; ii) January 1976 treatment for lumbar muscle spasm; and iii) October 1977 treatment for neck and back pain, and the Veteran's report of hurting his back when falling on a track in Germany. c) Did pes planus, which was noted on his entrance into service in January 1973, undergo an increase in severity during the Veteran's first term of service? Was any increase in severity as likely as not limited to the natural progression of the disease? Please specifically address the Veteran's lay statements describing how pes planus worsened during marches and other training, and that he had to receive treatment and profiles for his foot pain on multiple occasions during service. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 4. Schedule the Veteran for an appropriate VA examination with a psychiatrist or psychologist to address the nature and etiology of any psychiatric disorder diagnosed since August 2010. The examiner must specify in the report that all VBMS records have been reviewed. Any indicated evaluations or studies should be conducted. Based on examination findings, medical principles, and historical records, including available service treatment records, the examiner must address the following: a) What are the Veteran's current psychiatric diagnoses? Please discuss all diagnoses the Veteran has been given since he submitted his claim in August 2010. b) For each and every diagnosis found since August 2010, is it at least as likely as not that the disorder had its onset or is it otherwise related to any event or injury in the Veteran's period of military service from 1973 to 1979? Please discuss the Veteran's lay statements asserting that he first starting having paranoia and hallucinations during the 1970s in service; his assertions that his problems began after the alleged traumatic deaths of his sister and girlfriend or due to stress from working in a missile silo; and the January 2011 letter from the Veteran's nephew stating that the appellant's personality and behavior changed significantly during his military service. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 5. Schedule the Veteran for an appropriate VA audiological examination with a qualified examiner to address the nature and etiology of any hearing loss and tinnitus. The examiner must specify in the report that all VBMS records have been reviewed. Any indicated evaluations or studies should be conducted. Based on examination findings, medical principles, and historical records, including available service treatment records, the examiner must discuss: a) Is it at least as likely as not that any diagnosed hearing loss and/or tinnitus had their onset during, or were otherwise related to any event or injury in the Veteran's period of military service from 1973 to 1979. The examiner must consider the appellant's report that he had to frequently train with weapons, ride in noisy vehicles, and work with loud equipment; as well as his personnel records which show that his principal duty was grenadier from 1975 to 1978. Please also discuss his lay statements that he experienced ringing in his ears and the inability to hear people while he was still in service. b) If the Veteran is found to have a current diagnosis of hearing loss, is it at least as likely as not that tinnitus is either (i) caused or (ii) aggravated (worsened beyond the natural progression) by that hearing loss? A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 6. The Veteran is hereby notified that it is his responsibility to report for any scheduled examinations and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 7. Thereafter, the AOJ must readjudicate the issues. If any benefit sought is not granted, the appellant and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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. §§ 5109B, 7112 (2012). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).