Citation Nr: 1800762 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-16 667 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a compensable evaluation for otitis externa with headaches. 2. Entitlement to service connection for a back condition. 3. Entitlement to service connection for arthritis of the shoulders. 4. Entitlement to service connection for arthritis of the neck. 5. Entitlement to service connection for trench foot. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran had active service from April 1968 to April 1970. He had active service in Vietnam and was awarded the Combat Infantry Badge (CIB). This case comes before the Board of Veterans' Appeals (Board) on appeal of January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran was afforded Central Office (CO) hearing before the Board in June 2016. A transcript of the testimony offered at the hearing has been associated with the record. In October 2016, these matters were last before the Board, at which time they were remanded for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). In October 2016, the Board remanded the Veteran's claim for increased evaluation of the service-connected otitis externa with headaches to afford him a VA examination. He was provided a VA ear conditions examination in February 2017. The examination report reflects a diagnosis of chronic otitis externa, but no apparent headaches. The examiner described that the Veteran avoided swimming and used ear plugs while showering to prevent water from entering the ear. Otherwise, the examiner identified no other apparent symptoms, despite the Veteran's testimony that he had daily headaches, including prostrating episodes, and that he often had discharge from his ears. The examiner did not apparently consider the entire history when offering his opinion and the examination report identifies no apparent symptoms, despite the diagnosis of chronic otitis externa and the Veteran's reports of headaches and discharge. The examination report is inadequate, and must be returned. 38 C.F.R. § 4.2. In October 2016, the Board reopened the Veteran's claims for service connection of a low back condition, arthritis of the shoulder, arthritis of the neck and trench foot. The Board then remanded these claims to have the Veteran examined and obtain etiological opinions. In February 2017, the Veteran was afforded VA examinations. VA examination of the thoracolumbar and cervical spine resulted in assessments of lumbar and cervical sprains. Bilateral shoulder strains were also assessed. Examination of the skin noted a history of tinea pedis, diagnosed in 2014, although no apparent diagnosis was made. The examiner noted "flaky skin" between the toes, bilaterally, and ruled out "trench foot." With respect to the claimed disabilities of the low back, neck and shoulders, the examiner found it less likely than not that each was incurred in, or otherwise related to, service, noting that the service records were silent with respect to any neck or shoulder disabilities. With respect to the low back, the examiner noted a history of low back pain in the service records. However, he stated that no records indicated that the Veteran had a chronic back condition. In March 2017, the RO entered a deferred rating to obtain addendum opinions to the February 2017 VA examination reports. The RO noted that the VA examiner did not address the Veteran's lay statements regarding his history and symptoms. The RO also requested that the examiner address aggravation of a pre-service disability, noting that the Veteran had claimed that he had a back injury prior to entering service. In March 2017, the VA examiner entered addendum opinions to his February 2017 reports. In each case, the examiner concluded that he could now not offer an opinion without resorting to speculation because of a "lack of continuity of care." In terms of aggravation, the examination report incorrectly addressed secondary service connection. The examination reports are insufficient to decide the claims. Initially, the examiner concluded it less likely than not that each disability was incurred in, or otherwise attributable to, service. In his addendum opinions, the examiner then concluded that he could not offer opinions without resorting to speculation. In no case did the examiner address the Veteran's lay statements, and the opinion regarding aggravation addresses the wrong standard. Accordingly, the examination reports are returned. 38 C.F.R. § 4.2. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a new VA examiner in order to determine the nature and severity of his otitis externa with headaches. All indicated tests and studies, including an audiological evaluation if appropriate, should be accomplished and the findings then reported in detail. The examiner should also address the functional impairment associated with the Veteran's service-connected otitis externa with headaches. All relevant medical records, including the claims folders, must be made available to the examiner(s) for review of pertinent documents therein. A rationale for all opinions should be provided. 2. Schedule the Veteran for a VA examination with a new VA examiner to determine the nature and etiology of his claimed bilateral trench foot. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed skin disability of the feet, to include tinea pedis, is attributable to service, particularly his period of duty in Vietnam. Attention is directed to the Veteran's reports of symptoms of the foot condition in service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reason(s) for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. Schedule the Veteran for a VA examination(s) with a new VA examiner to determine the nature and etiology of his claimed back condition, arthritis of the shoulders and arthritis of the neck. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed disability of the back, neck and shoulders, to include arthritis, is attributable to service, particularly his period of duty in Vietnam. Attention is directed to the Veteran's reports of neck, back and shoulder pain related to carrying a portable radio during his combat service in Vietnam With respect to the claimed low back condition, the examiner is asked to address whether the evidence of record clearly and unmistakably shows that the Veteran had a low back condition that existed prior to his entry onto active duty, and if so, whether the evidence clearly and unmistakably show that the preexisting condition was not aggravated by service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reason(s) for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 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 it is to find against it. The evidentiary standard of clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Horn v. Shinseki, 25 Vet. App. 231, 234-35 (2012) (citations omitted). 4. Ensure that the information provided in the obtained examination reports satisfies the criteria above and, if not, return any such report as insufficient. Then, after any further development deemed necessary, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative a Supplemental Statement of the Case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. J. ALIBRANDO 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).