Citation Nr: 18147720 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-34 437 DATE: November 6, 2018 ORDER The petition to reopen a claim of entitlement to service connection for a neck disability is granted. The petition to reopen a claim of entitlement to service connection for bilateral hearing loss is granted. The petition to reopen a claim of entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to exposure to herbicides, is remanded. Entitlement to service connection for a right ankle disability, to include as secondary to exposure to herbicides, is remanded. Entitlement to service connection for a left foot disability, to include as secondary to exposure to herbicides, is remanded. Entitlement to service connection for a right foot disability, to include as secondary to exposure to herbicides, is remanded. Entitlement to service connection for a skin disability, claimed as a rash on the lower extremities, to include as secondary to exposure to herbicides, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT An August 2008 rating decision last denied service connection for bilateral hearing loss, tinnitus, and a neck disability; evidence pertaining to the Veteran’s bilateral hearing loss, tinnitus and neck disability since the last final rating decision was not previously submitted, relates to unestablished facts necessary to substantiate the claims, and is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The August 2008 rating decision which denied the Veteran’s claims for bilateral hearing loss, tinnitus and a neck disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.1103. 2. The evidence received since the last final August 2008 rating decision is new and material, and the claims for service connection for bilateral hearing loss, tinnitus, and a neck disability are reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1968 to February 1972. New and Material Evidence At the time of the last final denial of the Veteran’s claims for service connection for bilateral hearing loss, tinnitus, and a neck disability, in August 2008, evidence of record included service treatment records and VA treatment records. Evidence associated with the claims file since the previous August 2008 denial includes VA treatment records and statements reflecting continued issues with his claimed disabilities. Based on this new evidence, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claims for service connection for bilateral hearing loss, tinnitus and a neck disability are reopened. REASONS FOR REMAND Further evidentiary development is required prior to reviewing the issues remaining on appeal. 1. Entitlement to service connection for neck and back disabilities is remanded. Service treatment records reflect that the Veteran fell down stairs in December 1968. In April 1969, he sought treatment for low back pain. Service treatment records further reflect that in May 1970 the Veteran sought treatment following an automobile accident. He reported that he had hit his head against the windshield. The Veteran now asserts that he injured his neck and back in October 1971 following a fall from a helicopter. He states that he did not seek medical treatment following this incident. Although an April 2015 VA examination was completed with respect to his back, the VA examiner incorrectly noted that the Veteran’s back disability preexisted service. A May 1968 service entrance examination clearly shows a normal clinical evaluation of his spine. The Board finds that the Veteran should be afforded VA examinations to determine the nature and etiology of any back and neck disabilities found. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a left ankle disability, right ankle disability, left foot disability, right foot disability, and a skin disability (claimed as a rash on the lower extremities), all claimed as secondary to exposure to herbicides, is remanded. 3. The Veteran asserts that his pain in his feet has been diagnosed as nerve pain and he believes its associated with his exposure to herbicides. Additionally, the Veteran asserts that his rash on his lower extremities is also related to his conceded herbicide exposure. See July 2016 statement submitted with his substantive appeal. It is unclear from the record whether the Veteran is diagnosed with disabilities of the feet, ankles, or skin that are presumptively service-connected based on herbicide exposure. The Board finds VA examinations and opinions are necessary. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to service connection for bilateral hearing loss and entitlement to service connection for tinnitus is remanded. Service treatment records are silent as to any complaints of, or treatment for, hearing loss or tinnitus. Post-service treatment records reflect that the Veteran has been diagnosed with hearing loss and tinnitus. The Veteran asserts that his hearing issues are related to military noise exposure. Despite the statements from the Veteran attesting that he first developed hearing problems in service that have continued to the present, the Veteran has not yet been provided with a VA examination concerning his claimed hearing loss and tinnitus. The Board finds that a VA examination and medical opinion are critical to the claims and should be obtained. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following actions: Arrange for the Veteran to undergo VA examinations to determine the nature and etiology of his (a) neck disability; (b) back disability; (c) left ankle disability; (d) right ankle disability (e) left foot disability; (f) right foot disability; (g) skin disability of the lower extremities; (h) bilateral hearing loss; and (i) tinnitus. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with the examinations, and the examiner must indicate that such review occurred. The examiner must provide well-reasoned opinions on: Neck Disability Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed neck disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his period of active service. Back Disability Whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed back disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his period of active service. Left Ankle Disability Whether it is at least as likely as not (a probability of 50 percent or greater) that any left ankle disability, however diagnosed, had its onset in service or is otherwise medically related to in-service injury or disease, to include presumed herbicide exposure. Right Ankle Disability Whether it is at least as likely as not (a probability of 50 percent or greater) that any right ankle disability, however diagnosed, had its onset in service or is otherwise medically related to in-service injury or disease, to include presumed herbicide exposure. Left Foot Disability Whether it is at least as likely as not (a probability of 50 percent or greater) that any left foot disability, however diagnosed, had its onset in service or is otherwise medically related to in-service injury or disease, to include presumed herbicide exposure. Right Foot Disability Whether it is at least as likely as not (a probability of 50 percent or greater) that any right foot disability, however diagnosed, had its onset in service or is otherwise medically related to in-service injury or disease, to include presumed herbicide exposure. Skin Disability of the Lower Extremities Whether it is at least as likely as not (a probability of 50 percent or greater) that any skin disability of the lower extremities, however diagnosed, had its onset in service or is otherwise medically related to in-service injury or disease, to include presumed herbicide exposure. Bilateral Hearing Loss and Tinnitus Whether it is at least as likely as not (a probability of 50 percent or greater) that any bilateral hearing loss disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his active service, to include in-service noise exposure. Whether it is at least as likely as not (a probability of 50 percent or greater) that any tinnitus disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his active service, to include in-service noise exposure. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.M. Clark, Counsel