Citation Nr: 18149642 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 08-12 810 DATE: November 14, 2018 REMANDED Entitlement to service connection for tendonitis is remanded. Entitlement to service connection for bilateral hearing loss disability is remanded. Entitlement to service connection for peptic ulcer disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for carpal tunnel disability of the right hand is remanded. Entitlement to service connection for a sleep disability is remanded. Entitlement to service connection for bilateral leg disability is remanded. Entitlement to service connection for kidney cysts is remanded. Entitlement to service connection for bilateral eye disability is remanded. Entitlement to service connection for a mouth/dental disability is remanded. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a low back disability is remanded. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right knee disability is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hepatitis C is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin disability (claimed as pseudo folliculitis barbae and/or chloracne due to herbicide agent exposure) is remanded. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for fibromyalgia (claimed as due to exposure to contaminated water at Camp Lejeune, North Carolina) is remanded. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a cervical spine disability is remanded. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for an intestinal disability is remanded. Entitlement to an increased rating for left ankle disability, currently evaluated as 20 percent disability. . REASONS FOR REMAND The Veteran had active military service from December 1974 to September 1978. These matters come before the Board of Veterans’ Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA), Regional Offices (RO) in San Diego and Los Angeles, California, and Louisville, Kentucky. Several of these matters were previously before the Board in August 2016 when they were remanded for further development. The Board has recharacterized the psychiatric claim on appeal to exclude PTSD as the September 2006 rating decision accepted the Veteran’s written withdrawal of the claim as to PTSD. In August 2017 correspondence to VA, prior to certification to the Board, the Veteran’s attorney of record informed VA that he was no longer representing the Veteran and that he had informed the Veteran. A subsequent September 2017 letter from the AOJ to the Veteran also advised the Veteran that he was unrepresented and advised him he could contact the RO for a listing of Veterans service organizations and/or representatives. Thus, the Board finds the Veteran is currently representing himself. A February 2002 VA clinical record reflects that the Veteran reported that he was in receipt of Social Security Administration (SSA) benefits for a non-psychiatric physical disability. An undated vocational rehabilitation document (apparently from when the Veteran was 56 years old) also reflects that the Veteran reported that he was in receipt of SSA monthly benefits, as does a June 2012 VA clinical record. A remand is required to allow VA to request these SSA records. In its August 2016 remand, the Board noted that VA clinical records from June 2014 and afterwards were not associated with the claims file. The September 2017 Supplemental Statement of the Case (SSOC) does not reflect that additional clinical records were added to the claims file or that the RO attempted to obtain them if they existed. A remand is required to allow VA to associate all such records with the claims file. In its August 2016 remand, the Board directed that the Veteran be scheduled for an examination for his hearing loss and acquired psychiatric disabilities. It appears that VA has had difficulty obtaining these examinations due to the Veteran relocating. A January 2017 VA Form 20-572 reflects that the Veteran had a new address in London, England; VA electronic correspondence reflects that the Veteran’s examinations were canceled on May 4, 2017 because the Veteran was no longer living in England and had returned to the United States. A May 4, 2017 VA Form 27-0820 (Report of General Information) reflects that the Veteran telephoned VA and informed it that he could be contacted at an address in Washington DC. On May 30, 2017, the Appeals Management Center (AMC) requested that the examinations be rescheduled. The RO stated in a September 2017 SSOC, that the examinations were scheduled for Washington DC but that the Veteran failed to appear. As the claims are being remanded for VA to obtain records, the Veteran should be afforded another opportunity to report for examinations. With regard to hearing loss, the Veteran has not been shown to have had reliable hearing loss test results (e.g. see February 2006 VA examination report and October 2012 VA audiology record); thus, the clinician should ensure, as reasonably possible, that any results are reliable and any opinion is based on an accurate history. With regard to an acquired psychiatric disability, an April 2016 Disability Benefits Questionnaire (DBQ) reflects that the Veteran has schizophrenia and that his service-connected left ankle arthritis and tinnitus “manifest as schizophrenia” and have “aggravated schizophrenia” to the point that he is unable to work. However, the clinician did not provide a degree of aggravation or note the baseline. The Veteran has previously been found by clinicians to not have objective findings of left ankle symptoms (see May 1979 VA examination report) and/or that he is less than credible with regard to the severity of his left ankle disability (e.g. see September 1996 VA examination and June 1999 VA examination reports). In addition, with regard to an acquired psychiatric disability, his credibility has been questioned on several occasions (e.g. see November 1996, June 1997, March 2012, June 2012, and August 2012 clinical records with note malingering for secondary gain and/or inconsistencies, and/or invalid diagnostic testing results). In this regard, the Board notes that not only have examiners found the Veteran to be less than consistent with the severity of his left ankle disability, and that he fractured his left ankle falling off a cliff (he sprained it playing football in service.) However, because the DBQ provides an indication of aggravation, an examination is warranted to determine the actual level, if any, of aggravation of an acquired psychiatric disability due to a service-connected disability. The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Obtain the Veteran’s outstanding VA and non-VA treatment records, including updated VA treatment records for the period from June 2014 to present. 3. Schedule the Veteran for examinations as detailed below. If the Veteran fails to show for an examination, please detail to the extent possible VA attempts to notify him of the examination (i.e. by phone and/or by mail and to which address). A. With regard to a hearing loss disability, the clinician should consider the pertinent evidence of record to include: i.) the Veteran’s STRs; ii.) the February 2006 VA examination report which reflects that the Veteran was inconsistent during testing and his results may not be reliable; and iii.) the October 2012 VA audiology record which reflects that bone conduction could not be properly performed because the Veteran could not tolerate the headphone on the left side; and iv.) a series of papers published by Sharon Kujawa at the Department of Audiology, Massachusetts Eye and Ear Infirmary, which suggest that even in the presence of a “fully” recovered temporary threshold shift, hair cells in the ear remain damaged and suggest that noise exposure which damages hair cells, but not a significant enough number to result in immediate hearing loss, may nonetheless contribute to hearing loss many years later when the number of cells damaged by the noise exposure is combined with the number damaged due to the natural aging process. If the examination results are not adequate, the clinician should state the reason for such inadequacy. The clinician should opine whether it is as likely as not (50 percent or greater) that the Veteran has bilateral hearing loss disability causally related to active service, including conceded noise exposure in service. B. With regard to an acquired psychiatric disability, the examiner should opine as to: a. whether it is as likely as not (50 percent or greater) that the Veteran has an acquired psychiatric disability which began during service or is otherwise related to service; b. whether it is as likely as not (50 percent or greater) that the Veteran has an acquired psychiatric disability which is causally related to a service-connected disability. c. whether it is as likely as not (50 percent or greater) that the Veteran has an acquired psychiatric disability which is aggravated by a service-connected disability. If the clinician finds aggravation, the clinician should state, if reasonably possible, the degree of aggravation (i.e. the degree of increase from his base-line level of disability (prior to the aggravation)). The clinician should consider the pertinent evidence of record to include: i.) the May 1979 VA examination report; ii.) the September 1996 VA examination report; iii.) the June 1999 VA examination report; iv.) the November 2014 VA examination report; v.) November 1996, June 1997, and March, June, and August 2012 VA records noting, with regard to an acquired psychiatric disability, that the Veteran’s credibility and motivation were called into question; and vi.) the April 2016 opinion provided by the Veteran’s private psychologist.   4. Thereafter the claims remaining on appeal should be readjudicated. In particular, the cervical spine claim should be readjudicated to determine whether new and material evidence has been presented, as it has been recharacterized on the title page as a claim to reopen. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Wishard