Citation Nr: 18141970 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 16-20 980 DATE: October 12, 2018 REMANDED Entitlement to service connection for a bilateral foot neurological disability, to include cold injury residuals, is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran had an honorable period of active service from March 1991 to November 1998. [Thereafter, he had a period of service from November 1998 to September 2003 which was determined to be dishonorable for VA purposes in a May 2011 administrative decision.] On the Veteran’s February 2016 VA Form 9 (for the claims of entitlement to service connection for a bilateral foot neurological disability and for a right shoulder disability), he requested a hearing before the Board. However, during August 2016 and March 2017 phone calls, as well as in a June 2017 written statement, he withdrew his request for a Board hearing. The Veteran had also initiated an appeal of the denial of service connection for a right knee disability. A December 2015 rating decision granted service connection for right knee patellofemoral pain syndrome with degenerative arthritis. Consequently, this matter is not before the Board. The Board notes that, following the execution of a VA Form 21-22 in June 2010 which appointed Oregon Department of Veterans’ Affairs as the Veteran’s accredited representative, the Veteran submitted a VA Form 21-22a in January 2016 which appeared to express his intent to appoint his friend (J.W.) as an unaccredited one-time representative. In August 2016, the Agency of Original Jurisdiction (AOJ) sent the Veteran a letter explaining that he could have an unaccredited individual representing him for only one claim at a time and asking him to clarify which of the two pending appeal streams he wanted J.W. to represent him for; however, the Veteran did not respond to the AOJ’s clarification request. As such, the Board finds that the appointment of J.W. was not clear and therefore not valid at the time it was completed, and because the Veteran did not respond to the AOJ’s clarification request, the Board will proceed with recognizing Oregon Department of Veterans’ Affairs as the Veteran’s current representative for all claims on appeal (as they were the last validly appointed representative and have continued to represent the Veteran even since his unsuccessful attempt to appoint J.W. as a one-time representative). The Board additionally notes that the Veteran has been incarcerated since November 2002 and is scheduled to remain incarcerated until November 2041. 1. Entitlement to service connection for a bilateral foot neurological disability, to include cold injury residuals. The Veteran contends that he currently has a bilateral foot neurological disability related to his military service, to include as a result of cold weather exposure therein. The Veteran’s service treatment records (STRs) for his honorable period of active service document the following pertinent findings. In October 1995, it was noted that he had pain and a tingling sensation in both feet, which he thought “could be a possible cold weather injury” because he had been exposed to an extreme temperature for six days. Thereafter, during a consultation with a vascular surgeon in November 1995, it was noted that he was exposed to a freezing temperature (19 degrees Fahrenheit) in October 1995 while on field duty when wearing his field boots and that he had experienced occasional feet swelling prior to that date; it was noted that there was no evidence of cold injury identified and that he had normal arterial perfusion of both lower extremities and feet. Six days later in November 1995, he was assessed with paresthesias of both feet. Post-service, the Veteran asserted in a February 2012 written statement that he had suffered a cold weather injury to his feet in 1995 and that his feet now “hurt every day and twice as much when it is cold” and are “aggravated by cold and wet” weather. At an April 2015 VA cold injury residuals examination, it was noted that the Veteran had never been diagnosed with any cold injuries. He described his current bilateral foot symptoms (including arthralgia or other pain, locally impaired sensation, and nail abnormalities), but the VA examiner did not render any foot or neurological diagnoses, and it was noted that diagnostic testing was not performed. In an accompanying April 2015 medical opinion, the VA examiner opined that the Veteran’s claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness and that it was less likely as not that the altered sensation to his feet was from his cold weather exposure while in the military; however, the rationale for this opinion is speculative in nature, as the VA examiner noted that it was “questionable” that the Veteran’s exposure to the cold in 1995 resulted in cold injuries, “especially with normal vascular studies” at that time. The VA examiner also opined that the Veteran “has some symptoms consistent with cold injuries to include sensitivity to cold and damp climates” and that his misshapen nails appeared to be fungal in the left little toe but of “unknown etiology” in the bilateral great toes – but the VA examiner did not provide any nexus opinion between these symptoms and the Veteran’s military service. After any outstanding treatment records for the Veteran have been obtained and associated with the claims file (including any VA treatment records, in light of a December 2002 private treatment record for an unrelated condition noting that the Veteran “Has records at V.A.”), a new examination with medical opinion should be obtained [pursuant to appropriate procedures for incarcerated Veterans] to ascertain any current bilateral foot neurological disability and to address any relationship between such disability and any incident of his military service, with specific consideration given to the pertinent findings noted in his STRs (as outlined above) as well as his confirmed cold weather exposure in service. 2. Entitlement to service connection for a right shoulder disability. The Veteran contends that he currently has a right shoulder disability related to his military service, to include as a result of an injury therein. The Veteran’s STRs for his honorable period of active service document that he complained in March 1994 of right shoulder pain for two days after he “slammed into a tree during ABN Ops [Airborne Operations]”; he was assessed with a contusion. Thereafter, a January 2000 memorandum from the Department of the Army noted the following: “A presumptive finding of IN LINE OF DUTY has been made in the case of [the Veteran] for the neck, right shoulder, right arm and right hand injury he sustained in February 1997 at Ft Lewis, WA.” [A May 1999 STR noted: “Service member[’]s records lost from 15 Mar 91 to 12 May 99[.]”] Post-service, the Veteran asserted in a February 2012 written statement that he had injured his right shoulder in service in an Airborne operation in 1994 and that this had been a “source of constant pain,” and that “over the last year” it had gotten so bad that his hand was losing strength and he had trouble sleeping in any position. At an April 2015 VA shoulder and arm examination, it was noted that the Veteran had been diagnosed with a right shoulder contusion in 1994. He described his current right shoulder symptoms (including pain and functional loss), but it was noted that no current x-rays were performed, and no current diagnostic testing was noted. In an accompanying April 2015 medical opinion, the VA examiner opined that the Veteran’s claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness and that it was less likely that the Veteran’s current shoulder complaint is the same as he had in 1994; however, the rationale for this opinion is inadequate, as the VA examiner noted that the Veteran’s medical records were silent for any further treatment of his right shoulder or complaints of right shoulder pain, without taking into account the February 1997 line-of-duty injury referenced above. After any outstanding treatment records for the Veteran have been obtained and associated with the claims file, a new examination with medical opinion should be obtained [pursuant to appropriate procedures for incarcerated Veterans] to ascertain any current right shoulder disability and to address any relationship between such disability and any incident of his military service, with specific consideration given to the pertinent findings noted in his STRs (as outlined above). 3. Entitlement to service connection for tinnitus. The Veteran contends that he currently has tinnitus related to his military service, to include as a result of loud noise exposure therein while serving as an Infantryman. His DD Form 214 documents that his primary specialty in the Army was Intelligence Analyst and does not show that he received any awards indicative of combat participation. The Veteran’s STRs for his honorable period of active service document the following pertinent findings. In April 1991, it was noted that his tympanic membranes were retracted at the time when he was assessed with an upper respiratory infection(URI)/clinical sinusitis. A July 1994 audiogram noted that he was “Routinely Exposed to Hazardous Noise.” In December 1996, it was noted that his left ear canal had wax buildup at the time when he was assessed with a viral syndrome. Post-service, the Veteran asserted in a May 2015 written statement that his duty assignment as an Infantryman involved continuous exposure to loud noise (such as gunfire and explosions) which was a contributing factor in causing tinnitus. The Board notes that the Veteran has not yet been afforded a VA audiological or ear examination. In an October 2016 medical opinion, a VA audiologist opined that the Veteran’s claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness and that it was less likely than not (less than 50 percent probability) that the Veteran’s tinnitus was caused by or a result of military noise exposure for the period from 1991 to 1998; however, the rationale for this opinion is inadequate, as the VA examiner noted that there was no objective evidence of acoustic trauma to support a nexus between tinnitus and the Veteran’s military service, without taking into account the July 1994 audiogram confirming his routine exposure to hazardous noise during his honorable period of service. After any outstanding treatment records for the Veteran have been obtained and associated with the claims file, an examination with medical opinion should be obtained [pursuant to appropriate procedures for incarcerated Veterans] to address any relationship between the Veteran’s current tinnitus and any incident of his military service, with specific consideration given to the pertinent findings noted in his STRs (as outlined above) as well as his confirmed noise exposure in service. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his claimed disabilities at any time. Make two requests for the authorized records from these providers, unless it is clear after the first request that a second request would be futile. 2. Obtain all VA treatment records for the Veteran. Any negative search result should be noted in the record and communicated to the Veteran. 3. After all requested records have been associated with the claims file, schedule the Veteran for examinations by appropriate clinicians – pursuant to appropriate procedures for incarcerated Veterans – to determine the nature and etiology of any current bilateral foot neurological disability, right shoulder disability, and tinnitus. The electronic claims file must be made available to the examiners for review in conjunction with the examinations. All necessary tests (to include neurological studies for his feet and x-rays for his right shoulder) should be performed and the results reported. The examiners must provide opinions as to the following: (a.) Is it at least as likely as not that any current bilateral foot neurological disability developed during the Veteran’s honorable period of active service (i.e., from March 1991 to November 1998) or is otherwise related to any incident of such service (with specific consideration given to all pertinent STRs), including his confirmed cold weather exposure therein? (b.) Is it at least as likely as not that any current right shoulder disability developed during the Veteran’s honorable period of active service (i.e., from March 1991 to November 1998) or is otherwise related to any incident of such service (with specific consideration given to all pertinent STRs)? (c.) Is it at least as likely as not that the Veteran’s current tinnitus developed during his honorable period of active service (i.e., from March 1991 to November 1998) or is otherwise related to any incident of such service (with specific consideration given to all pertinent STRs), including his confirmed loud noise exposure therein? A complete rationale for all opinions must be provided. If the clinicians cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinicians must provide the reasons why an opinion would require speculation. The clinicians must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinicians must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. B. Yantz, Counsel