Citation Nr: 1800170 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-15 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a left arm disorder, to include nerve damage. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for residuals of right foot surgery, to include as secondary to service-connected bilateral tinea pedis. 5. Entitlement to service connection for low back strain, to include as secondary to service-connected tinea pedis. 6. Entitlement to a compensable rating for tinea pedis. 7. Entitlement to a rating in excess of 50 percent for anxiety disorder. REPRESENTATION Appellant represented by: Eric A. Shore, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1985 to October 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2012, September 2012, and February 2013 rating decisions by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). In November 2015 and November 2016 this matter was remanded (by Veterans Law Judges other than the undersigned) for further development. In September 2017, a Travel Board hearing was held before the undersigned; a transcript is in the record. At the hearing the Veteran requested, and was granted, a 90 day abeyance period for the submission of additional evidence. That period of time has lapsed; no additional evidence was received. A February 2015 rating decision awarded a temporary total (for hospitalization under 38 C.F.R. § 4.29) rating for the anxiety disorder for the period from October 6, 2014, through December 31, 2014. Consequently, that period of time is not for consideration. A prior Board remand noted that issues of service connection for a bilateral ankle disability and for PTSD were raised in October 2012 and October 2014 statements, respectively, but not adjudicated by the agency of original jurisdiction (AOJ), and referred the matters to the AOJ for appropriate action. It does not appear that any action has been taken on the referral; accordingly, the matters are again referred to the AOJ for appropriate action. The appeal is REMANDED to the AOJ. VA will notify the Veteran if action is required. REMAND The record suggests that the medical evidence associated with the record is incomplete. The record includes a June 2012 denial letter from the Social Security Administration (SSA). VA has not obtained the medical records upon which the denial was based. VA has a duty to obtain records in SSA's possession, provided they are relevant. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Board is unable to find the SSA records would not be relevant. Further, the most recent records of VA evaluations and treatment the Veteran has received for anxiety and tinea pedis are dated in May 2017. Records of all VA evaluations and treatment he has received for anxiety and tinea pedis during the period under consideration are pertinent evidence, and must be sought and considered. Notably, VA records are constructively of record. In addition, on August 2011 VA shoulder and arm examination, the examiner opined that the Veteran's left arm disorder is at least as likely as not related to an incident in service. The examiner noted that service treatment records (STRs) confirm a left arm injury in service, and opined that the Veteran provided a reliable history. However, the examiner did not identify a diagnosis of a current left arm disability. Therefore, the examination report is inadequate for rating purposes. Notably, an EMG (in August 2011, but after the VA examination) showed evidence of possible mild entrapment neuropathy of the median nerve at the wrist and mild radial sensory neuropathy. Further development for an adequate medical examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007). On August 2011 VA audiological examination, the diagnosis was mild high frequency sensorineural hearing loss (SNHL) in the right ear and normal to severe SNHL in the left ear. The examiner opined that the hearing loss was not caused by or related to acoustic trauma during military service. She explained that the hearing loss in the left ear existed prior to enlistment and hearing in the right ear was within normal limits at the time of the Veteran's separation from service. The Board finds that the opinion is inadequate for rating purposes. Under governing caselaw, the absence of a hearing loss in service is not fatal to a claim of service connection for hearing loss (see Hensley v. Brown, 5 Vet. App. 155, 159 (1993)). Additionally, the rationale was conclusory (and alternate etiology for the hearing loss was not identified). The examiner also noted the veteran has recurrent tinnitus, but did not elicit from the Veteran when the tinnitus began. The examiner opined, without rationale, that the tinnitus was not caused by or related to acoustic trauma during military service. Therefore, the opinion is inadequate. At the September 2017 Board hearing, the Veteran testified that he has had "ringing in his ears" since service. Another examination to obtain a fully adequate opinion in these matters is necessary. On August 2012 VA foot examination, the diagnoses were hammer toes, helloma molle and tinea pedis. The examiner opined it was less likely than not that the Veteran's current foot disorder is related to an injury in service . He explained that all notations for treatment in the STRs were for tinea pedis, and he did not note any reference for heloma molle or hammertoes. The rationale for the opinion does not acknowledge the Veteran's reports that he developed painful corns on the 4th and 5th toes of the right foot, had constant pain while wearing boots, and sought treatment for the pain in service. As the opinion does not acknowledge the lay statements in the record, it is inadequate for rating purposes and another medical opinion is necessary. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). On December 2012 VA examination, the examiner observed that dermatophytosis of the feet does not cause alignment issues, that the Veteran's spine alignment was normal, and an altered gait caused by a foot and ankle condition was less likely than not to have caused his back pain. At the September 2017 Board hearing, the Veteran testified that his duties in service included carrying many chains to tie down aircraft, and asserted that his diagnosed back strain resulted from carrying the chains on the flight deck. The December 2012 opinion did not address that alleged theory of entitlement to service connection for a back disability, and therefore is inadequate for rating purposes. Another examination is necessary. The most recent VA examination to assess the severity of the Veteran's tinea pedis was in August 2011. At the September 2017 Board hearing it was alleged that symptoms of the Veteran's tinea pedis have increased in severity and that the tinea pedis has since spread to other anatomical areas. In light of the allegation of worsening and the 6 year interval since the Veteran was last examined, a contemporaneous examination to assess the disability is necessary. The most recent VA examination to evaluate the Veteran's anxiety was in December 2012. At the September 2017 Board hearing it was alleged that symptoms of the anxiety disorder have increased in severity since that examination. In light of the allegation of worsening and the more than 5 year interval since the Veteran was last examined, a contemporaneous examination to assess the disability is necessary. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record complete outstanding clinical records (any not already associated with the claims file) of VA evaluations or treatment the Veteran received for the disabilities at issue in this appeal, and in particular anxiety and tinea pedis, since May 2017. 2. The AOJ should also obtain for the record from SSA their determination on the Veteran's claim for SSA benefits and the medical records considered in that determination. If such records are unavailable, it should be so noted in the record (with explanation), and the Veteran should be so advised. 3. The AOJ should then arrange for an orthopedic examination of the Veteran (with neurological consult if deemed necessary) to determine the nature and likely etiology of any left arm disability manifested by pain , and low back and right foot disabilities, and specifically whether or not his low back and right foot disabilities are directly related to (were incurred during) his service, or were caused or aggravated by his service-connected tinea pedis . The Veteran's record must be reviewed by the examiner in conjunction with this examination, and any tests or studies deemed necessary must be completed. Based on review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Please identify (by diagnosis) each left arm disability found (or shown by the record during the pendency of the instant claim). Please specifically comment on the August 2011 EMG suggesting the Veteran has neurological impairment of the left upper extremity. (b) Regarding any (and each) left arm disability diagnosed, is it at least as likely as not (i.e., a 50% or better probability) that such is related to his service (to include as due to the June 1987 injuries sustained F-18 canopy accident)? If not, please identify the etiology considered more likely. (c) Please identify (by diagnosis) each low back disability entity found/or shown by the record during the pendency of the instant claim. (d) Please identify the likely etiology for each low back disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that such disability was incurred in service? (e) If a diagnosed low back disability is found to not be directly related to the Veteran's service, please opine further whether it is at least as likely as not (a 50% or greater probability) that any such disability was caused or aggravated by (increased in severity due to) the Veteran's service-connected tinea pedis . [The opinion must address aggravation.] (f) If the opinion is to the effect that a service-connected disability did not cause, but aggravated, a low back disability, the examiner should specify, to the extent possible, the degree of disability (pathology/impairment) that has resulted from such aggravation. (g) If the opinion is to the effect that a low back disability was not incurred in service or caused or aggravated by a service-connected disability, please identify the etiology considered more likely. (h) Please identify (by diagnosis) each right foot disability entity found. (i) Please identify the likely etiology for each right foot disability entity diagnosed. Is it at least as likely as not (a 50% or better probability) that such disability/ies was/were incurred during the Veteran's active service? The rationale should acknowledge (reflect consideration of) the Veteran's reports of self-treatment in service, and his statements on the August 2012 VA foot examination report. (j) If a diagnosed right foot disability is found to not be directly related to the Veteran's service, please opine further whether it is at least as likely as not (a 50% or greater probability) that such disability was caused or aggravated by (increased in severity due to) the Veteran's service-connected tinea pedis . [The opinion must address aggravation.] (k) If the opinion is to the effect that a service-connected disability did not cause, but aggravated, a right foot disability, the examiner should specify, to the extent possible, the degree of disability (pathology/impairment) that has resulted from such aggravation. (l) If the opinion is to the effect that a right foot disability was not incurred in service or caused or aggravated by a service-connected disability, please identify the etiology considered more likely. The examiner must include rationale with all opinions, citing to supporting factual data as deemed appropriate. 4. The AOJ should arrange for an audiological examination of the Veteran to ascertain the likely etiology of his hearing loss disability and tinnitus. The Veteran's record must be reviewed by the examiner in conjunction with the examination. The examiner should acknowledge that the Veteran's occupation in service (on an aircraft carrier flight deck) likely exposed him to hazardous levels of noise in service). Based on a review of the record, and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Please identify the likely etiology of the Veteran's hearing loss disability. Specifically, is it at least as likely as not (i.e., a 50% or better probability) that such is related to the Veteran's service (to include as due to his exposure to hazardous level noise therein)? (b) What is the likely etiology for the Veteran's tinnitus? Specifically, is it at least as likely as not (a 50% or better probability) that it had its onset in service or is otherwise related to service, to include as due to exposure to noise therein? The response should acknowledge the Veteran's testimony that his tinnitus began in service and has persisted since. If the Veteran's hearing loss is determined to be unrelated to service, the provider should identify the etiology for the hearing loss considered more likely (and explain why that is so). The examiner must explain the rationale for all opinions. 5. The AOJ should arrange for a dermatological examination of the Veteran to assess the current severity of his service-connected tinea pedis. The Veteran's record (to include this remand, his STRs and postservice treatment records) must be reviewed by the examiner in conjunction with the examination. In addition to reporting clinical findings, the examiner should elicit from the Veteran a detailed description of the nature, frequency, durations, and all affected areas of involvement (and their extent) during periods of exacerbation. [The examiner must be provided a copy of the criteria for rating skin disabilities, and the findings noted should include the information needed to rate under all applicable criteria.] Upon review of the record and interview and examination of the Veteran, the examiner should respond to the following: Please describe in detail and nature, scope and severity of symptoms of the Veteran's service-connected tinea pedis. Specifically note the percentages of the entire body and exposed areas affected by the tinea pedis (including during periods exacerbation, considering the Veteran's reports and commenting whether they are consistent with the clinical picture presented by the record) and the nature, frequency, and duration of any systemic therapy provided. The examiner must include rationale with all opinions. 6. The AOJ should also arrange for a psychiatric examination of the Veteran to assess the severity of his service connected anxiety disorder. The Veteran's entire record must be reviewed by the examiner in conjunction with the examination. The examiner should have available for review the 38 C.F.R. § 4.130 criteria for rating mental disorders, and should note the presence or absence of each symptom listed in the criteria for ratings above 50 percent (and any symptoms of similar gravity found that are not listed). The examiner should also (based on review of the record and interview and examination of the Veteran) offer an opinion regarding the functional impact the Veteran's anxiety has on his employability. The examiner must include rationale with all opinions. 7. The AOJ should then review the record, arrange for any further development indicated (suggested by the results of the development sought above) and readjudicate the claims. If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his attorney opportunity to respond, and return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ GEORGE R. SENYK 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).