Citation Nr: 1803583 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-01 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for the residuals of a cold injury of the bilateral shoulders, bilateral elbows, bilateral hands, lumbar spine, bilateral hips, bilateral knees, bilateral ankles, and bilateral feet. 2. Entitlement to service connection for diabetes mellitus, claimed as due to radiation exposure. 3 Entitlement to service connection for peripheral neuropathy of the legs, claimed as secondary to diabetes mellitus. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for tinnitus. 6. Entitlement to service connection for bilateral hearing loss. 7. Entitlement to service connection for vertigo. 8. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 9. Entitlement to service connection for kidney disease. 10. Entitlement to service connection for a disability of the gallbladder. 11. Entitlement to service connection for a psychiatric disorder, to include anxiety and posttraumatic stress disorder (PTSD). WITNESSES AT HEARING ON APPEAL Appellant and R.E. ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to November 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision rendered by the Boise, Idaho Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2014, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. REMAND In December 2014, the Veteran submitted a letter showing that he had been awarded Social Security Disability benefits. While Social Security Administration (SSA) records are not controlling for VA determinations, they may be pertinent to VA claims. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). When the VA is put on notice of the existence of SSA records, VA must seek to obtain the records before proceeding with the appeal. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Lind v. Principi, 3 Vet. App. 493 (1992). The SSA records may be relevant to the current appeal. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Board finds that the RO should obtain and associate with the claims file a copy of any SSA decision on the Veteran's claim, and copies of all medical records underlying that determination, following the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal agencies. At the July 2014 Board hearing, the Veteran stated that he received current treatment at the VA Medical Center (VAMC) in Walla Walla, Washington. He remarked that he had his gallbladder removed at VAMC Walla Walla in approximately 1986. He additionally stated that he first received treatment from a VA facility in Richland, Washington, in about 1980. The most recent treatment records from the VAMC in Walla Walla of record date from July 2014. The earliest treatment records from the VAMC in Walla Walla of record date from September 2005. The Board recognizes the attempts that the RO has made to obtain the records of the Veteran's gallbladder surgery at VAMC Walla Walla from 1985. In December 2013, the RO certified that records from the VAMC Walla Walla from 1985 were unavailable. However, no efforts have been made to secure any available treatment records from the VA facility Richland, Washington, from 1980. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Efforts should be made to obtain all outstanding referenced treatment records, as authorized by the Veteran. The Veteran contends that he has disabilities of the bilateral shoulders, bilateral elbows, bilateral hands, lumbar spine, bilateral hips, bilateral knees, bilateral ankles, and bilateral feet due to cold exposure while he was on active duty. The Veteran has stated that while he was serving in Germany, he was outside for hours doing maintenance on Nike Hercules missiles. He stated that it was hard to make fine adjustments with big gloves on, so he had to remove his gloves. He recalled seeing a Belgian doctor who simply told him to "toughen up." After service, he had a hip replaced and had degenerative disc disease in the back. He also has stated that he has arthritis. Service personnel records show that the Veteran served in USAREUR-Germany from August 1971 through November 1972 as a missile mechanic. Therefore, the personnel records provide some support for the Veteran's testimony, and the Board finds that the Veteran was likely exposed to some cold temperatures during service. The remaining question is whether the Veteran has current residuals of any in-service cold exposure. The Board notes that a private treatment record from October 2012 shows that the Veteran experienced hip pain after getting caught between utility trailers the prior July. The examiner felt that the Veteran had acute chronic changes of the right hip with degenerative changes caused by a traumatic incident. He subsequently underwent a right hip replacement. However, the record is unclear whether that hip accident is superimposed on a possible pre-existing cold injury. On remand, the Veteran should be provided a VA cold injury protocol examination to identify any cold injury residuals that may be affecting the bilateral shoulders, bilateral elbows, bilateral hands, lumbar spine, bilateral hips, bilateral knees, bilateral ankles, and bilateral feet. The Veteran has stated that he lost all sense of balance in his right ear. He stated that the vertigo was secondary to an in-service assault. Service records show that in June 1970, the Veteran was struck by a beer bottle from a motor vehicle. The Veteran has also stated that he experiences hearing loss and tinnitus from service noise exposure. The Veteran underwent VA audiology examination in August 2012. The examiner opined that the Veteran's bilateral hearing loss was less likely as not caused by or a result of service. The audiologist noted that the service medical records showed normal hearing acuity bilaterally across all frequencies upon entrance into the Army in 1969 with no changes in hearing acuity noted on the separation audiogram in 1972. The Board finds the August 2016 examination report to be incomplete for adjudication purposes. The Board notes a series of papers by Sharon Kujawa at the Department of Audiology of the Massachusetts Eye and Ear Infirmary, which shows that even in the presence of a "fully" recovered temporary threshold shift (TTS), hair cells are damaged. That study indicates that while people have a finite number of hair cells at any given frequency only a portion of those cells are needed for what we measure as normal hearing, and the remainder could be considered a protective mechanism. That study also suggests that as people age, those hair cells are damaged, and if the redundant cells are not there, the individual experiences a greater hearing loss. The August 2016 examiner did not address those research papers in the report. Therefore, the Board finds that a medical opinion from an otolaryngologist is necessary prior to the final adjudication of this matter. In light of the documented in-service assault with a beer bottle, a medical opinion from an otolaryngologist would also be helpful regarding the etiology of any vertigo or balance problems. The Veteran has stated that he has a psychiatric disability as a result of an unprovoked attack while he was stationed in El Paso, Texas, at Fort Bliss. The Veteran underwent VA psychiatric examination in August 2012. The examiner opined that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-IV criteria. The examiner provided a diagnosis of anxiety disorder, not otherwise specified, and stated that based on the available information, it was less likely than not that the anxiety disorder was caused or exacerbated by service stressors. No further rationale was given. Due to the lack of rationale given for the etiology opinion, the Board finds the August 2016 examination report to be incomplete for adjudicative purposes. An additional opinion is necessary to address the nature and etiology of any psychiatric disability. When VA provide an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has claimed that his diabetes mellitus, residuals of gall bladder removal, and kidney disease are the result of exposure to radiation during duties as a missile mechanic during service. The Veteran has explained that the Nike Hercules missiles he worked on had nuclear warheads, and part of his work was taking the nuclear weapons out of the missile, taking the casings off, and inspecting the missiles. He has stated that he was stationed with the Nike Hercules missiles for two and a half years. The Veteran has additionally claimed that residuals of gall bladder removal, kidney disease, and COPD are secondary to exposure to chemicals and solvents. The Veteran stated that he was exposed to solvents for approximately three years. He stated that exposure to solvents in a closed area can cause neurological or pulmonary diseases. A review of the record shows that there has been no development conducted in attempting to verify either exposure to chemicals, such as solvents, or exposure to ionizing radiation during active service. Therefore, the Board finds that attempts should be made to verify any exposure to chemicals, such solvents, while the Veteran was on active duty. Also, attempts should be made to verify any exposure to ionizing radiation in duties as a Nike Hercules missile repairman. Accordingly, the case is REMANDED for the following action: 1. With any necessary authorization from the Veteran, obtain any outstanding VA and private treatment records, to particularly include any outstanding records from VAMC Walla Walla, Washington and VAMC Richland, Washington. All attempts to locate records must be documented in the claims file. 2. Request from the Social Security Administration complete copies of any disability decisions made concerning the Veteran and copies of the medical records that served as the basis for any decisions. Make reasonable efforts to obtain the records, including at least one follow-up request if no response is received. If the records are not available, a negative reply is required. 3. Undertake the appropriate development to verify the claimed exposure to chemicals during active service, to specifically include solvents. All efforts to verify the reported exposure must be documented in the claims file. 4. Undertake the appropriate development to verify the claimed exposure to ionizing radiation during the course of duties as a Nike Hercules missile repairman. Follow any pertinent procedures outlined in 38 C.F.R. § 3.311. All efforts to verify the reported exposure must be documented in the claims file. 5. Schedule the Veteran for a VA cold injury protocol examination for opinions as to whether it at least as likely as not (50 percent or greater probability) that he has bilateral shoulder, bilateral elbow, bilateral hand, lumbar spine, bilateral hip, bilateral knee, bilateral ankle, and bilateral feet disabilities as a result of service. The examiner must consider and discuss the Veteran's specific contention that he was exposed to cold while serving as a missile mechanic in Belgium and Germany on active duty. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner should note that the absence of in-service evidence of cold injury symptoms is not always fatal to a service connection claim and should consider the Veteran's reports and lay statements. The examiner must review the claims file, including the private treatment record from October 2012 which shows that the Veteran experienced hip pain after getting caught between utility trailers the prior July, and must note that review in the report. All necessary tests and studies should be conducted. 6. Schedule the Veteran for a VA examination for an opinion on whether any hearing loss, tinnitus, and vertigo diagnoses are as likely as not (50 percent or greater probability) related to either noise exposure or a blow to the head in service. The examination should be conducted by an otolaryngologist. The Veteran was exposed to loud noise during service. Additionally, in June 1970, the Veteran was hit in the head by a beer bottle from a passing car. A hearing test and the Maryland CNC word recognition test must be conducted. The examiner must review the claims file and should note that review in the report. The Board notes that the Veteran was not diagnosed with hearing loss at separation or during service, but that is not dispositive on the issue of whether current hearing loss is related to acoustic trauma in service. The examiner is asked to provide comment on the impact on the opinion, if any, of the line of research conducted by Dr. Sharon G. Kujawa, including the following: (a) "Acceleration of Age-Related Hearing loss by Early Noise Exposure: Evidence of a Misspent Youth" by S. Kujawa, M.D., and M. C. Liberman (2006). - J Neurosci. 2006 Feb 15; 26(7): 2115-2123. (b) Kujawa SG, Liberman MC (2009) Adding insult to injury: cochlear nerve degeneration after "temporary" noise-induced hearing loss. J Neurosci. 2009 Nov 11;29(45):14077-85. (c) Lin HW, Furman AC, Kujawa SG and Liberman MC (2011) Primary neural degeneration in the guinea pig cochlea after reversible noise-induced threshold shift. JARO 12:605-616. (d) Furman AC, Kujawa SG, Liberman MC (2013) Noise-induced cochlear neuropathy is selective for fibers with low spontaneous rates. J. Neurophysiol.110, 577-586. 7. Request an addendum opinion from the examiner who conducted the August 2012 psychiatric evaluation of the Veteran. The examiner must review the claims file and the prior examination report. Based upon a review of the claims file and the prior examination report, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that anxiety disorder, not otherwise specified, was incurred in or is otherwise related to honorable active service. The examiner should note that the absence of in-service evidence of psychiatric symptoms is not always fatal to a service connection claim and should consider the Veteran's reports and lay statements. If there is another likely etiology for the Veteran's anxiety disorder, that should be stated. If the August 2012 examiner is unavailable, arrange for another examiner with appropriate expertise to review the record and provide the requested opinion. If additional examination of the Veteran is necessary, arrange for the Veteran to undergo the appropriate VA examination. Any opinion expressed must be accompanied by a complete rationale. 8. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Harvey P. Roberts 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).