Citation Nr: 18152115 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 16-15 780 DATE: November 21, 2018 ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for a neck disability, to include cervical strain and anterolisthesis. New and material evidence has been submitted to reopen a claim of entitlement to service connection for right ear hearing loss. New and material evidence has been submitted to reopen a claim of entitlement to service connection for tinnitus. Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a neck disability, to include cervical strain and anterolisthesis, is remanded. Entitlement to an increased rating for left ear hearing loss, currently rated as noncompensable, is remanded. Entitlement to an increased rating for onychomycosis, currently rated as noncompensable, is remanded. Whether new and material evidence was submitted to reopen a claim of entitlement to service connection for vertigo is remanded. FINDINGS OF FACT 1. In May 1991, the agency of original jurisdiction (AOJ) issued a rating decision which denied, in relevant part, service connection for a neck disability (previously characterized as residuals of a cervical strain), hearing loss and vertigo. The Veteran filed a timely notice of disagreement (NOD) and substantive appeal. 2. In July 1992, prior to the Board’s adjudication of issues, the AOJ granted service connection for left ear hearing loss, but denied service connection for right ear hearing loss and tinnitus. 3. In September 1994, the Board remanded all issues before it, including the issues of entitlement to service connection for a neck disability, right ear hearing loss, tinnitus, and vertigo, for clarification regarding the Veteran’s intention to withdraw his appeal of these issues. 4. On January 18, 1995, the AOJ received notification from the Veteran clearly and unambiguously withdrawing his appeal of entitlement to service connection for a neck disability, right ear hearing loss, tinnitus, and vertigo; thus, the May 1991 and July 1992 rating decisions are final. 5. New and material evidence was submitted since the May 1991 rating decision to reopen the claim of entitlement to service connection for a neck disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 6. New and material evidence was submitted since the July 1992 rating decision to reopen the claim of entitlement to service connection for right ear hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. New and material evidence was submitted since the July 1992 rating decision to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 8. The Veteran’s right ear hearing loss began during active service. 9. The Veteran’s tinnitus began during active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals of service connection for a neck disability, right ear hearing loss, tinnitus and vertigo were met by the correspondence received on January 18, 1995. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. 2. Since the May 1991 rating decision, new and material evidence was submitted to reopen the claim of entitlement to service connection for a neck disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Since the July 1992 rating decision, new and material evidence was submitted to reopen the claim of entitlement to service connection for right ear hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. Since the July 1992 rating decision, new and material evidence was submitted to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for entitlement to service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 6. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from November 1975 to November 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2012, March 2014, and June 2014 rating decisions of the Department of Veterans Affairs (VA). This appeal contains some procedural issues. In the February 2012 rating decision, the agency of original jurisdiction (AOJ) denied service connection for several conditions due to the lack of new and material evidence: (1) neck disability (previously characterized as residuals of a cervical strain); (2) right ear hearing loss; (3) tinnitus; and (4) vertigo. The AOJ also denied an increased rating for left ear hearing loss. The Veteran received notice of the rating decision on March 1, 2012. On April 19, 2012, he submitted a written notice of disagreement (NOD) to the VA stating, “I am in receipt of your letter dated March 1, 2012, and “this letter will serve to state that I disagree with your decisions.” The Veteran also called for the AOJ to “please act on my Notice of Disagreement as soon as possible.” Within the NOD, the Veteran expressed his disagreement with the AOJ’s evaluation of his left ear hearing loss, and the continued denial of service connection for a neck disability, right ear hearing loss, and tinnitus. While the Veteran did not specifically mention the denial of service connection for vertigo, the Veteran was operating pro se at the time of his submission and the Board must read the filings of pro se claimants liberally. See Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). When reviewing this NOD liberally, the Board finds that the Veteran initiated an appeal of all the issues addressed in the February 2012 rating decision. As a result, the AOJ was required to provide the Veteran with a statement of the case (SOC) addressing the issues he appealed. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Unfortunately, the AOJ did not issue an SOC which addressed the issues of whether new and material evidence was submitted to reopen the claims of entitlement to service connection for right ear hearing loss, tinnitus, and vertigo. While the Board could remand such issues for issuance of an SOC pursuant to Manlincon, in this case, the Board finds that it may proceed with adjudicating the issues of whether new and material evidence has been submitted to reopen claims of entitlement to service connection for right ear hearing loss and tinnitus. In this instance, AOJ already adjudicated these issues, notwithstanding the failure to provide an SOC, and the Board’s decision on them, as well as the underlying merit of the claims, is in the Veteran’s favor. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (“…the Board must determine whether there is any prejudice to the Veteran in its considering the claim without remand to the AOJ for action.”). Therefore, proceeding with adjudication benefits the Veteran. In contrast, the Board remands the issue of whether new and material evidence was submitted to reopen a claim of entitlement to service connection for vertigo because the record does contain sufficient information from which to reopen and the Board’s decision would otherwise be prejudicial without receipt of the SOC. See Manlincon, 12 Vet. App. at 240-41; Bernard, 4 Vet. App. at 394. Lastly, while the Veteran initially filed for service connection of a cervical strain, and filed to reopen the claim for the same, the record also contains a diagnosis of mild cervical anterolisthesis and demonstrations of painful motion upon examination. See Saunders v. Wilkie, 886 F.3d 1356, 1364, 1368 (Fed. Cir. 2018) (holding that the term “disability” refers to functional impairment, and pain can serve as a functional impairment when it impairs the body’s normal functioning and the Veteran’s earning capacity). Therefore, the Board has recharacterized the Veteran’s claim as one for a neck disability, to include cervical strain and anterolisthesis, in order to encompass all conditions reasonably contemplated by the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Evidence In this case, the AOJ denied service connection for a neck disability, hearing loss and vertigo in a May 1991 rating decision. The Veteran filed a timely notice of disagreement (NOD) and substantive appeal. The AOJ denied service connection for a neck disability and vertigo because the conditions in service were deemed acute and transitory, and there was no disability or residuals shown at the November 1990 VA examination (VAX). In July 1992, prior to the Board’s adjudication of these issues, the AOJ granted service connection for left ear hearing loss, but denied service connection for right ear hearing loss and tinnitus. The AOJ denied service connection for right ear hearing loss as there was no evidence of a hearing loss disability. The AOJ denied service connection for tinnitus because there were no complaints, treatment or findings of tinnitus during service. The Veteran was notified of these decisions by letter dated July 28, 1992. On August 5, 1992, the Veteran made specific reference to the VA notification letter of July 28, 1992, and stated “I am satisfied with benefits granted.” Ultimately, the issues were certified to the Board, which the Board remanded in a September 1994 decision. The Board found that the Veteran did not identify with sufficient particularity the issues he wished to withdraw from appellate status. Therefore, the Board remanded all the issues to provide the Veteran with an opportunity to clarify his intentions. Following the remand, the VA received written correspondence from the Veteran on January 18, 1995, in which he specifically requested to withdraw from appeal all the issues addressed in the September 1994 Board decision, including those of entitlement to service connection for a neck disability, right ear hearing loss, tinnitus, and vertigo. See 38 C.F.R. § 20.204 (providing that an appeal may be withdrawn as to any or all issues involved in the appeal); id. § 20.204(b)(1) (providing that appeal withdrawals must be in writing, except if made on the record at a hearing). The statement satisfied the criteria for a withdrawal and had the effect of withdrawing the pertinent NOD and substantive appeal filed on the issues. As a result, the May 1991 and July 1992 rating decisions became final. 38 U.S.C. § 7105. The Veteran now seeks to reopen a claim of entitlement to service connection for a neck disability, right ear hearing loss, and tinnitus. The Board must first determine whether the Veteran has submitted new and material evidence under 38 C.F.R. § 3.156(a) in order to have a final denial reopened under 38 U.S.C. § 5108. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis is neither required nor permitted. Id. at 1384. If new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law is interpreted in favor of enabling reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Evidence is material where it is relevant and probative of the issues at hand and where there is a reasonable possibility that, when viewed in the context of all the evidence, both new and old, it would change the outcome. Id.; Evans v. Brown, 9 Vet. App. 273, 283 (1996). New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). For purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The focus is not exclusively on whether the evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 118. Thus, evidence is new and material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. 1. New and material evidence has been submitted to reopen the claim of entitlement to service connection for a neck disability. In this case, evidence submitted since the May 1991 rating decision includes new lay statements and a new VA medical examination. The AOJ previously noted that the Veteran sustained a cervical strain in service, but found that the condition was acute and transitory and that no residuals were demonstrated during the November 1990 VAX. Since then, the Veteran underwent another VAX in July 2017 which demonstrated abnormal range of motion findings with painful motion, and shows a current diagnosis of mild cervical anterolisthesis. See Saunders v. Wilkie, 886 F.3d 1356, 1364, 1368 (Fed. Cir. 2018) (holding that the term “disability” refers to functional impairment, and pain can serve as a functional impairment when it impairs the body’s normal functioning and the Veteran’s earning capacity). While the Veteran did not submit any medical opinions in support of his claim, the Veteran did assert that he received post-service medical treatment for his neck condition from several providers. Specifically, he reported seeking treatment from Dr. Gorsky in 1992, then saw several chiropractors around 1998, followed by Dr. R.W. Schubert, and lately Dr. R.S. Schubert. The Veteran also reported treatment at Ostir Chiropractic in 2004. See App. for Compensation (Sept. 2011). These lay statements of post-service treatment are new because they were not previously reported. They are also material as they purport to establish a link to the Veteran’s military service—i.e. that the Veteran continued to seek treatment for a neck injury sustained in service. While the Veteran’s current neck disability does not include a chronic disease subject to the chronic diseases presumption, the new evidence raises a reasonably possibly of substantiating the claim. Accordingly, the service connection claim for a neck disability is reopened. 2. New and material evidence has been submitted to reopen the claim of entitlement to service connection for right ear hearing loss. The July 1992 rating decision denied service connection for right ear hearing loss because there was no evidence of a hearing loss disability. Evidence submitted since the July 1992 rating decision includes new audiological evaluations, new medical opinions, and new lay statements. Among the new lay statements, the Veteran attributed his hearing loss either to a motor vehicle accident during service or to high levels of noise exposure from artillery fire without hearing protection while on a mission in Puerto Rico. The Veteran also reported difficulty hearing and understanding speech with background noise such as in restaurants, office meetings and work trainings, and said he often asks others to repeat themselves, which causes him embarrassment. These statements are new because they were not previously part of the record. Additionally, the new medical evidence received is material as it establishes the existence of a current right ear hearing loss disability. 38 C.F.R. § 3.385 (providing that impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater); Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (finding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss); see June 2017 VAX (showing 25 decibel loss at 3000 Hz and 40 decibel loss at 4000 Hz with normal speech discrimination score); February 2016 VAX (showing 35 decibel loss at 4000 Hz with normal speech discrimination score); March 2014 VAX (showing 25 decibel loss at 3000 and 4000 Hz with normal speech discrimination score); November 2011 VAX (showing 25 decibel loss at 4000 Hz with normal speech discrimination score); see also January 2011 Private Audiological Evaluation (showing 40 decibel loss at 4000 Hz). Additionally, the June 2017 VA examiner opined that the Veteran’s right ear hearing loss was caused by or due to service. The VA examiner noted that the Veteran’s service audiological evaluations showed a significant increase in hearing sensitivity at the 4000 Hz threshold in the right ear, and the 3000, 4000 and 6000 Hz thresholds for the left ear when comparing the July 1975 entrance examination with the September 1990 separation examination. Compare July 1975 Audiogram (showing 10 decibel loss at 4000 Hz in right ear), with September 1990 Audiogram (showing 30 decibel loss at 4000 Hz in right ear); see also January 1976 Audiogram (showing 15 decibel loss at 4000 Hz); June 1984 Audiogram (showing 35 decibel loss at 4000 Hz in right ear). Given the significant threshold shift noted during service, the examiner opined that the Veteran’s hearing loss in both ears was at least as likely as not caused by or the result of noise exposure during service. Altogether, the new medical evidence is material as it establishes a link between the Veteran’s military service and his current diagnosis. Accordingly, the claim of entitlement to service connection for right ear hearing loss is reopened. 3. New and material evidence has been submitted to reopen the claim of entitlement to service connection for tinnitus. The July 1992 rating decision denied service connection because it was not shown in service. Evidence submitted since the July 1992 rating decision includes new audiological evaluations, new medical opinions, and new lay statements. The Veteran consistently reported recurrent bilateral tinnitus during the appeal period, and the new medical evidence establishes the existence of a current recurrent tinnitus disability. See June 2017 VAX; February 2016 VAX; March 2014 VAX; November 2011 VAX; January 2011 Private Audiological Evaluation. The new evidence also establishes a link between the Veteran’s current tinnitus disability and service. The June 2017 examiner opined that, given the documented change in hearing bilaterally during service and the Veteran’s report of tinnitus during (and since) the May 1992 VAX, it was at least as likely as not that his tinnitus was caused by or the result of his military noise exposure. The June 2017 examiner’s opinion is consistent with other VA medical opinions obtained during the appeal period. See March 2014 VAX (opining that the Veteran’s tinnitus is at least as likely as not related to his service connected hearing loss because tinnitus is a known symptom associated with hearing loss); November 2011 VAX (opining the same and noting that the Veteran was able to identify a specific event which led to its onset). For these reasons, the new medical evidence is material as it establishes a reasonably possible link between his current diagnosis and military service. Accordingly, the claim of entitlement to service connection for tinnitus is reopened. Service Connection Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for chronic diseases listed in 38 C.F.R. § 3.309(a) may also be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period after separation from service (usually one year); or was noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113, 1131, 1133, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has been diagnosed with sensorineural hearing loss in the right ear which is considered an organic disease of the nervous system and is recognized as a chronic disease under Section 3.309(a); thus, it is subject to the chronic diseases presumption. See Veterans Benefits Administration (VBA) Fast Letter 10-02 (Mar. 18, 2010); see also Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (characterizing high frequency sensorineural hearing loss as an organic disease of the nervous system). For purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Tinnitus is a condition which is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374-375 (2002). 1. Entitlement to service connection for right ear hearing loss is granted. Service connection for right ear hearing loss is granted because the Veteran satisfied all three Shedden elements. First, he has a current diagnosis of right ear hearing loss. E.g., June 2017 VAX. Second, he reported artillery noise exposure during service and his in-service audiological evaluations showed a significant increase in hearing sensitivity at the 4000 Hz threshold in the right ear when comparing the July 1975 entrance examination with the September 1990 separation examination. Compare July 1975 Audiogram (showing 10 decibel loss at 4000 Hz in right ear), with September 1990 Audiogram (showing 30 decibel loss at 4000 Hz in right ear); see also January 1976 Audiogram (showing 15 decibel loss at 4000 Hz); June 1984 Audiogram (showing 35 decibel loss at 4000 Hz in right ear). Third, a VA examiner reviewed the Veteran’s claims file, examined the Veteran, and rendered a medical opinion with supporting rationale finding that the Veteran’s right ear hearing loss is at least as likely as not caused by or due to an event or noise exposure during service. June 2017 VAX. For these reasons, the elements of service connection are met and service connection for right ear hearing loss is warranted. 2. Entitlement to service connection for tinnitus is granted. Similarly, the Veteran has a current diagnosis of tinnitus which he contends began during military service. Specifically, he contends his tinnitus either began after a military vehicle accident (Humvee) during service or after being subjected to extremely loud artillery fire without hearing protection while stationed in Puerto Rico. Tinnitus is a condition which is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374-375 (2002). As tinnitus is a subjective phenomenon, the Veteran is competent to report the history of its onset and that it has been continuously present since service. He is deemed credible in this regard because he has reported tinnitus since his May 1992 VAX and tinnitus is a well-known symptom of hearing loss for which the Veteran has been service connected since leaving service. See March 2014 VAX (stating tinnitus is a known symptom of hearing loss). Furthermore, several examiners have linked the Veteran’s tinnitus to in-service noise exposure or his service connected hearing loss. See June 2017 VAX; February 2016 VAX; March 2014 VAX; November 2011 VAX; January 2011 Private Audiological Evaluation. For these reasons, the elements of service connection are met and service connection for tinnitus is granted. REASONS FOR REMAND 1. Entitlement to service connection for a neck disability is remanded. This issue must be remanded for two reasons. First, as mentioned above, the Veteran stated that he received post-service medical treatment for his neck condition from several providers. Specifically, he reported seeing Dr. Gorsky in 1992, then several chiropractors around 1998, followed by Dr. R.W. Schubert, and lately Dr. R.S. Shubert. The Veteran also reported treatment at Ostir Chiropractic in 2004. See App. for Compensation (Sept. 2011). The record does not show any attempts to obtain these records. The outstanding records are relevant and may help substantiate his claim, particularly due to the lack of medical records showing complaints or treatment since military service. Therefore, remand is necessary for the AOJ to attempt to obtain these records. Second, the record indicates that the VA failed to provide the Veteran’s representative with the Supplemental Statement of the Case (SSOC) rendered in September 2017. The Veteran was not prejudiced by the Board’s favorable findings above—reopening this claim—and undue delay was avoided. On remand, the AOJ should provide the Veteran’s representative with a copy of the September 2017 SSOC, as well as any subsequent SSOCs, followed by an opportunity to respond. 2. Entitlement to an increased rating for left ear hearing loss, currently rated as noncompensable, is remanded. Given the Board’s favorable decision above granting service connection for right ear hearing loss, the AOJ must now calculate a Roman numeral designation (I through XI) for hearing impairment in the right ear. Previously, the AOJ simply assigned a Roman numeral designation of I (lowest) for the non-service-connected right ear when calculating the percentage rating for hearing impairment, as required by 38 C.F.R. § 4.85(f). The percentage rating is calculated by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85(e). As the increased rating claim for the service connected left ear hearing loss is directly affected by the Roman numeral designation for hearing impairment of the now service-connected right ear, which is yet to be assigned by the AOJ, it is inextricably intertwined with the service-connected right ear hearing loss rating and must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). 3. Entitlement to an increased rating for onychomycosis, currently rated as noncompensable, is remanded. This issue must be remanded for a new VAX and medical opinion. In his July 2014 NOD and April 2016 substantive appeal, the Veteran asserted that the thickness of his nails has caused him pain while walking and resulted in neuromas for which he received injections to relieve the pain. See also February 2014 Skin Diseases VAX (reporting that his nail pain disturbs his gait and has resulted in neuromas); Dr. L.A.K. Records (showing treatment for left foot neuroma in 2013); Dr. S.B.O. Records (showing treatment for left foot neuroma in November and December 2012). In April 2016, he also argued that the prior VAXs (in February 2014 and February 2016) regarding his onychomycosis were inadequate as the examiners “barely glanced” at his feet. Additionally, the Veteran submitted photos indicating that his fungal condition spread to his ankle and heel areas. Subsequently, he was provided another VAX in June 2017 at which time the examiner failed to indicate the approximate total body area or total exposed area affected by his condition. In light of the Veteran’s contentions and the inadequacy of the June 2017 examination, another examination should be scheduled to determine the severity of the Veteran’s condition and to determine the nature and etiology of any neuromas. 4. Whether new and material evidence was submitted to reopen a claim of entitlement to service connection for vertigo is remanded. As discussed above, the May 1991 rating decision which denied service connection for vertigo became final when the Veteran clearly and unambiguously withdrew his appeal of that issue on January 18, 1995. The AOJ reconsidered and declined to reopen the issue in the February 2012 rating decision. The Veteran appealed the issue in his April 2012 NOD. See NOD (Apr. 19, 2012). Unfortunately, the AOJ failed to issue an SOC that addressed it. The Board must remand this issue as the record does not contain sufficient information from which to reopen and the Board’s decision would otherwise be prejudicial. See Manlincon, 12 Vet. App. at 240-41; Bernard, 4 Vet. App. at 394. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all the doctors and facilities from which he sought or received treatment for his neck condition, to include Ostir Chiropractic, Dr. Gorsky, Dr. R.W. Schubert, Dr. R.S. Schubert. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Send the Veteran’s representative a copy of the September 2017 SSOC. 3. Assign the appropriate rating for the Veteran’s service connected hearing loss—now bilateral. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service connected onychomycosis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should consider the Veteran’s contention that the thickness of his nails causes him pain while walking and has resulted in neuromas for which he received injections to relieve the pain. See also February 2014 Skin Diseases VAX (reporting that his nail pain disturbs his gait and has resulted in neuromas); Dr. L.A.K. Records (showing treatment for left foot neuroma in 2013); Dr. S.B.O. Records (showing treatment for left foot neuroma in November and December 2012). The examiner should also consider the photos received on April 6, 2016, purporting to show that the Veteran’s fungal condition spread to his ankle and heel areas. 5. Send the Veteran and his representative a statement of the case that addresses the issue of whether new and material evidence was submitted to reopen a claim of entitlement to service connection for vertigo. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. (Continued on the next page)   6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel