Citation Nr: 1756849 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-01 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus, to include as secondary to service-connected temporomandibular joint disability. 3. Entitlement to service connection for asthma. 4. Entitlement to service connection for bilateral feet bone spurs with falling arches. 5. Entitlement to service connection for bilateral plantar fasciitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Setter, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1991 to October 1994, and again in September 2001. This appeal to the Board of Veterans' Appeal arises from a rating decision in May 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. By way of background, the RO denied entitlement to service connection in May 2008 for hearing loss, tinnitus, asthma, bilateral feet bone spurs with falling arches, and bilateral plantar fasciitis. The Veteran was granted entitlement to service connection for her temporomandibular joint disability in a December 2013 rating decision, effective from October 5, 2006. During the Veteran's hearing with the undersigned Veterans Law Judge (VLJ), the Veteran testified that her claimed tinnitus disability could be attributed to her service-connected temporomandibular joint disability, per a private medical opinion in the claims file. The Board has thus characterized that issue as listed above. The Veteran testified before the undersigned VLJ at a videoconference Board hearing in December 2016. A transcript of that hearing is of record. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran claims hearing loss, tinnitus, to include as secondary to service-connected disability, asthma, bilateral feet bone spurs with falling arches, and bilateral plantar fasciitis, asserting that all derive from in-service incidents and injuries. VA's duty to assist in a Veteran's claim includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran has current diagnoses of hearing loss, tinnitus, asthma, and bilateral foot disabilities, she has provided statements indicating an onset of symptoms in service, she has indicated his symptoms have been persistent since service, and there is otherwise insufficient medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the Board finds that a remand for a VA examination addressing the nature and etiology of the Veteran's hearing loss, tinnitus, to include as secondary to service-connected disability, asthma, bilateral feet bone spurs with falling arches, and bilateral plantar fasciitis is required. Accordingly, the case is REMANDED for the following actions: 1. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran. 2. Schedule the Veteran for VA examinations to determine the nature and etiology of the Veteran's hearing loss, tinnitus, asthma, bilateral feet bone spurs with falling arches, and bilateral plantar fasciitis. The claims file must be made available to and reviewed by the examiner(s). A note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: a. Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's claimed hearing loss disability had its onset in service or is otherwise related any to any in-service disease, event, or injury. b. Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's claimed tinnitus disability had its onset in service or is otherwise related to any in-service disease, event, or injury. i. If not, is it at least as likely as not (a fifty percent probability or greater) that the tinnitus was caused by the Veteran's service-connected temporomandibular joint (TMJ) disability or any other service-connected disability? ii. If TMJ did not cause tinnitus, is it at least as likely as not (a fifty percent probability or greater) that tinnitus was aggravated by the TMJ? iii. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of tinnitus by the service connected disability. c. Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's claimed asthma disability had its onset in service or is otherwise related to any in-service disease, event, or injury. Attention is invited to the Veteran's service treatment records added to the electronic claims file on October 14, 2013 and the June 10, 2002 document from the Air National Guard Surgeon General's office that indicates the Veteran is being medically separated from service because her diagnosed asthma disqualifies her for worldwide military duties. d. Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's claimed bilateral feet bone spurs with falling arches disability had its onset in service or is otherwise related to any in-service disease, event, or injury. e. Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's claimed bilateral plantar fasciitis disability had its onset in service or is otherwise related to any in-service disease, event, or injury. A detailed rationale supporting the examiner's opinion should be provided. In forming the opinion the examiner must consider all lay statements of record. If the examiner feels that the requested opinions 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). Jones v Shinseki, 23 Vet App 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and her representative should be afforded the applicable time period in which to respond. 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. §§ 5109B, 7112 (West 2012). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).