Citation Nr: 18156114 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 14-21 595 DATE: December 7, 2018 ORDER Whether new and material evidence has been received to reopen service connection for right foot bunion is granted. Entitlement to service connection for residuals of right hand fracture is denied. Entitlement to an earlier effective for service connection for scar of the nose is denied. Entitlement to an earlier effective date for service connection for left foot bunion is denied. Entitlement to an initial rating in excess of 10 percent for scar of the nose is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for right foot bunion is remanded. Entitlement to service connection for sinus condition is remanded. Entitlement to a compensable initial rating prior to September 6, 2016 and a rating in excess 10 percent thereafter for allergic rhinitis is remanded. Entitlement to a 10 percent rating under 38 C.F.R. 3.324 from June 3, 2011 to December 12, 2011 for multiple noncompensable disabilities is remanded. FINDINGS OF FACT 1. The October 2006 rating decision, which denied service connection for bilateral bunions, became final, as the Veteran did not appeal the decision or submit new and material evidence within a year of the rating decision. 2. Since the October 2006 rating decision, the Veteran has submitted additional evidence that is new and material to raise a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for right foot bunion. 3. The probative evidence of record does not show the Veteran currently suffers from a right hand disability that is separate from his service-connected residuals of right hand fifth finger fracture, or is otherwise separately related to his active duty service. 4. Service connection was previously denied for residuals of nose fracture (scar of the nose) and left foot bunion, by an October 2006 rating decision. The Veteran was informed of this decision, including his right to appeal, and did not appeal within 1 year of the decision. 5. Following the October 2006 rating decision, no claims of service connection for residuals of nose fracture and left foot bunion were submitted to VA prior to December 12, 2011. 6. The probative evidence of record does not show the Veteran’s scar has manifested to visible or palpable tissue loss and either gross distortion or asymmetry of one or more features, or was considered painful. CONCLUSIONS OF LAW 1. The October 2006 rating decision denying service connection for bilateral bunions became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen service connection for right foot bunion, previously claimed as bilateral bunions. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for residuals of right hand fracture have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310. 4. The criteria for an effective date earlier than December 12, 2011 for a grant of service connection for residuals of nasal fracture, now claimed as scar on the nose, are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. 5. The criteria for an effective date earlier than December 12, 2011, for a grant of service connection for left foot bunion are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. 6. The criteria for an increased rating in excess of 10 percent for scar on nose have not been met. 38 U.S.C. 1155, 5103, 5103A and 5107; 38 C.F.R. 3.159, 3.321, 4.1, 4.118 Diagnostic Code 7800. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 2001 to May 2006. In June 2018, the Veteran was provided a hearing with the undersigned Veterans Law Judge, and a transcript of the proceeding is of record. New and Material Evidence Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. The Veteran is seeking to reopen service connection for right foot bunion. The claim was previously denied in October 2006 due to there being no evidence of record showing the Veteran’s condition was chronic or otherwise related to his active duty service. The rating decision became final, as the Veteran did not appeal the decision or submit new and material evidence within one year of the rating decision. Since the prior final decision, the Veteran has submitted additional medical records, and has been provided VA examinations. The Board finds this evidence is new, as it has not been part of the record before, and material, as the examinations pertain to a factor in possibly substantiating the claim for service connection, namely, whether the condition is related to his in-service right foot pain. Therefore, the evidence is to be considered new and material, and the claim is reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). 1. Residuals of Right Hand Fracture The Veteran contends that his right-hand disability is caused by his service-connected residuals of right fifth finger fracture and in-service accident. Service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (2017). In April 2016, the Veteran received a VA examination. The examiner noted the Veteran had a previous boxer fracture of the right hand. There was no additional diagnosis made. Following the examination, another VA examiner provided an addendum opinion. The examiner opined that the Veteran’s current right hand condition was less likely than not related to right hand pain on active duty. The examiner rationalized that the right hand pain in service was nonspecific, self-limiting, and resolved with no sequela or findings that would indicate a future chronic condition. The examiner then opined that the Veteran’s current right hand condition was less likely than not related to or a result of residuals of right hand fifth finger fracture. The examiner rationalized that the right fifth finger fracture healed completely with no sequela based on review of the service treatment records (STRs) and VA records. The Board notes that the VA examination did show the Veteran suffered from limitation of motion in his hand. However, the Veteran’s residuals of right fifth finger fracture was already separately service-connected and claimed as limited motion, and thus, his limitation of motion was already contemplated in his residuals of right fifth finger fracture service connection grant. Moreover, although the Veteran reported that he suffers from arthritis of the right hand and provided a private physician letter that stated he had been treated for right hand osteoarthritis, there has been no medical evidence provided showing any treatment for arthritis. Further, the VA examiner did not note any arthritis in the Veteran’s right hand examination. Given the above, the Board finds the April 2016 VA medical examination and addendum opinion to be of significant probative value in determining that the Veteran does not suffer from a separate right hand disability that is due to or aggravated by his service-connected right hand fifth finger fracture, or is otherwise related to his period of service. The Board notes that the probative value of medical opinion evidence is based on the medical experts’ personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, the reviewing physician’s opinion was based on review of the Veteran’s lay contentions, his reported medical history, and review of the medical evidence of record. Further, a complete and thorough rationale was provided for the opinion rendered and is consistent with the evidence of record. The Board acknowledges the Veteran’s assertions that he suffers from a separate right hand disability that is related to his service-connected right hand fifth finger fracture or otherwise related to his military. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether any additional right hand disability is present, and whether it is related to his military service, to include a service-connected right hand fifth finger fracture, requires medical expertise that the Veteran has not demonstrated since right hand conditions can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). Additionally, the Board notes that during the Veteran’s June 2018 hearing, the Veteran claimed his right hand condition was from his in-service right hand fracture, and again, the Veteran is already service-connected for the residuals from that injury. In light of the foregoing, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 2. Earlier Effective Date for Service Connection: Scar on Nose and Left Foot Bunion The Veteran contends that his grant of service connection for scar on nose from residuals of nasal fracture and left foot bunion should be provided an earlier effective date of August 14, 2006, the date he first filed his claim. The effective date for the grant of service connection for a disease or injury is the day following separation from active duty or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Here, the Veteran’s claims for service connection were previously denied in an October 2006 rating decision. The Veteran was informed of this decision, and while he filed a notice of disagreement, he did not perfect an appeal following the February 2007 Statement of the Case, nor did he submit new and material evidence within one year of the decision. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the denial of both claims became final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. The Board acknowledges that the Veteran’s representative in February 2008 correspondence, notified the Board it was submitting additional material in support of the Veteran’s claims for service connection for residuals of nasal fracture and bilateral bunions. However, the Board notes that this was filed over a year after the October 2006 rating decision and over 60 days after the subsequent February 2007 Statement of the Case. Following the representative’s correspondence, the Regional Office (RO) notified the Veteran that the time to perfect his appeal had passed, and therefore, the October 2006 had become final. The RO further explained that if the Veteran wished to reopen his claims, he would need to file new and material evidence and to notify the RO of his intent to reopen. The Board further notes that nothing was filed following the RO’s February 2008 notification. Additionally, no further correspondences were received regarding the Veteran’s claims for residuals of nasal fracture scar on nose and left foot bunion until December 12, 2011. The Board recognizes the Veteran submitted medical records in July 2011 stating he was being treated for left foot bunions. However, under 38 C.F.R. § 3.400, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. The Veteran filed his informal claim to reopen service connection for left foot bunion and nasal fracture residuals on December 12, 2011. Therefore, based on VA regulation, the Board is to follow the date of the December 12, 2011 informal claim, which is the later date of the two. Therefore, the Board finds that entitlement to earlier effective dates for the grant of service connection for scar on nose (residuals of nasal fracture) and left foot bunion are not warranted. The Veteran did not timely appeal the October 2006 rating decision and did not notify the Board of his request to reopen the claims until December 12, 2011. Thus, the appeals for earlier effective dates for grants of service connection for scar on nose and left foot bunion must be denied. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Reasonable doubt is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s scar of the nose is currently rated as 10 percent disabling under Diagnostic Code (DC) 7800 for Burns or Other Disfigurement of the Head, Face, or Neck. Under Diagnostic Code 7800, a 10 percent rating is assigned for one characteristic of disfigurement. A 30 percent evaluation is assigned in cases of visible or palpable tissue loss and either gross distortion or asymmetry of one feature or a paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or, with two or three characteristics of disfigurement. A 50 percent evaluation is warranted in cases of visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or, with four or five characteristics of disfigurement. An 80 percent evaluation is warranted in cases of visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or, with six or more characteristics of disfigurement. The 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are: Scar 5 or more inches (13 or more cm.) in length; Scar at least one-quarter inch (0.6 cm.) wide at widest part; Surface contour of scar elevated or depressed on palpation; Scar adherent to underlying tissue; Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Id. In April 2016, the Veteran received a VA examination. The examiner noted the Veteran did not have any painful scars of the head, face, or neck. The Veteran further did not have a scar that was unstable with frequent loss of covering of the skin over the scar, a both painful and unstable scar, or any scars due to burns. The Veteran’s scar was 4 centimeters on the bridge of his nose and had hyperpigmentation. The length and width of the scar was 4 x 1 cm. There was no elevation, depression, adherence to underlying tissue, or missing underlying tissue. The examiner noted the Veteran’s scar did not result in limitation of function and there were no other pertinent findings related to the scar. The Board notes that the Veteran has provided no other medical evidence showing the severity of his nasal scar. VA treatment records also do not mention any complaints of pain regarding his scar or the scar’s measurements. Upon review of the above, the Board finds that a rating in excess of 10 percent for scar of the nose is not warranted. The Veteran’s scar has not been shown to have manifested to having visible or palpable tissue loss, gross distortions, or asymmetry of two or more features. The Veteran’s scar has additionally only been measured as being 4 centimeters. Further, at no time has the Veteran’s scar been noted as painful or unstable. Therefore, consideration under Diagnostic Code 7804 is unwarranted. See 38 C.F.R. 4.118, DC 7800, 7804. In light of the foregoing, the Board concludes that a rating in excess of 10 percent for scar of the nose is not warranted. The benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND Although the Board regrets further delay, additional development is required prior to adjudication of the Veteran’s claims for service connection of right foot bunion, hearing loss, tinnitus, edematous sinus mucosa; increased rating for allergic rhinitis; and compensable rating under 38 C.F.R. § 3.324. 1. Hearing Loss and Tinnitus. The Veteran contends that he currently suffers from bilateral hearing loss and tinnitus that is related to his active duty service, to include his position as a wheeled vehicle mechanic. In March 2012, the Veteran received a VA examination. The examination showed the Veteran had normal hearing. The examiner also noted that the Veteran did not report tinnitus. In November 2014, the Veteran received another VA examination. Pure tone thresholds were not provided. The examiner provided that the pure-tone readings were inconsistent with DPOAEs, which is objective evidence of no worse than borderline normal peripheral hearing in both ears. The examiner further rationalized that responses were inconsistent with speech reception thresholds and conversational ability. The examiner stated that responses had poor test/retest reliability, varying as much by 20db and responses obtained at lower thresholds at 2db and 5db were consistent with non-organic hearing loss. The examiner then opined that the Veteran’s bilateral hearing loss was less likely than not related to his active duty service. The examiner then rationalized that the objective evidence from the examiner and March 2012 examination indicate normal hearing according to VA standards. His service treatment records indicated normal hearing at entrance and separation and there was no complaint of hearing in his STRs. The examiner then cited the Institute of Medicine report (IOM) that provided there is no scientific basis to conclude that permanent hearing loss that is directly attributable to noise exposure will develop long after the noise exposure. The examiner noted the Veteran did report tinnitus; however, the examiner opined that the Veteran’s tinnitus was less likely than not related to his active duty. The examiner rationalized there was no evidence of permanent auditory damage from conceded noise exposure on active duty. The examiner also explained that to attribute tinnitus to auditory damage on active duty, there must be a nexus of auditory damage on active duty and the evidence is against auditory damage in this case. The Board finds the March 2012 VA examination and November 2014 examination are inadequate to fairly adjudicate the Veteran’s claims for service connection. Although the examiner in March 2012 found that the Veteran had normal hearing in both ears, the November 2014 examiner could not provide pure-tone thresholds. Additionally, the November 2014 examiner noted the responses were inconsistent with DPOAEs which was objective evidence of no worse than borderline normal hearing; however, the examiner then stated that responses obtained at lower thresholds all were consistent with non-organic hearing. The Board finds this explanation is contradictory with the inconsistencies representing normal hearing. Further, since the examiner did not provide pure-tone thresholds or speech discrimination scores, the Board puts low probative value on the examination. Moreover, the Board observes that Court of Appeals for Veterans Claims (Court) has recently directed attention to the Institute of Medicine (IOM) report. The Court found that while the report states that “based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely” that the onset of hearing loss begins years after noise exposure occurs (IOM report at 47), this statement does not reflect the full extent of the report’s findings pertinent to the matter. The Court provided that while a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM report found that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure.” (IOM report at 203-04.) The Court has directed attention to the fact that the IOM report’s language may support a theory of service connection involving delayed onset of a Veteran’s perception of hearing loss such that a VA examiner’s citation of the report should contemplate to all of the pertinent aspects of its findings. See, e.g., Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential); Bethea v. Derwinski, 2 Vet. App. 252 (1992) (single-judge memorandum decisions may be cited or relied upon for any persuasiveness or reasoning they contain). Therefore, the Board finds, given the inconsistencies in the November 2014 examination and the Court’s decision regarding the IOM report, a new examination and opinion above should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that the Veteran’s claim for tinnitus is inextricably intertwined with his claim for bilateral hearing loss, and thus must be remanded along with his hearing loss claim. See Harris v. Derwinski 1 Vet. App. 180, 183 (1991). 2. Right Foot Bunion The Veteran contends that his right foot bunion condition is related to his active duty service, to include in-service complaints of right foot pain, right foot calluses, ingrown nail, and fungal infection. In April 2016, the Veteran received a VA examination. The examiner noted that the Veteran had bilateral fifth metatarsal bunion. Later in April 2016, an addendum opinion was provided by another examiner. The examiner opined that the Veteran’s right foot bunion was less likely than not related to the foot pain he experienced on active duty. The examiner rationalized that the right foot pain in service was nonspecific, self-limiting, and resolved with no sequela and there were no findings that would indicate a future chronic condition such as bunion. The Board finds the April 2016 addendum opinion is inadequate to fairly adjudicate the Veteran’s claim for service connection. Although the examiner stated the Veteran’s right foot bunion was not related to his in-service complaint of “right foot pain,” the Board notes that the Veteran did not only complain of right foot pain. The Veteran’s STRs show the Veteran was diagnosed with right foot calluses, ingrown nail, second toe pain, athlete’s foot, blisters, and overall bilateral foot pain. Further, the August 2012, December 2013, and April 2016 VA examinations showed the Veteran had right foot metatarsalgia, calluses, and bunions. Thus, an opinion regarding all of these symptoms should have been provided. Therefore, because the April 2016 VA examiner did not consider all of the Veteran’s in-service right foot complaints, nor was an opinion provided on all of the Veteran’s current right foot conditions, the Board finds that a remand is required to obtain a new opinion addressing the above. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Sinus Disability The Veteran contends that he suffers from a sinus disability that is related to his active duty service. In June 2018, the Veteran was provided a hearing. The Veteran contended that he had a separate sinus diagnosis and believed it was related to his service-connected allergic rhinitis. The Board notes that the Veteran is already service-connected for allergic rhinitis. Further, VA examinations from September 2016, April 2016, and December 2013 show the Veteran also has a diagnosis of chronic sinusitis; however, no opinion has been provided on the etiology of the Veteran’s sinusitis. In light of the above, the Board finds that a remand is required in order to get an opinion on the etiology of the Veteran’s sinusitis, specifically, whether it is related to or aggravated by his service-connected allergic rhinitis. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Increased Rating for Allergic Rhinitis The Veteran contends that his service-connected allergic rhinitis is more severe in nature. During the Veteran’s June 2018 hearing, the Veteran stated that his allergic rhinitis has gotten worse every year. He further stated that his allergies messed up his nose and caused headaches, stuffy nose, and trouble breathing. Due the Veteran reporting that his allergies have gotten worse every year, and his last examination being over two years ago, the Board finds that a remand is required in order to obtain a new medical examination to determine the current severity of the Veteran’s allergic rhinitis. See Weggenmann v. Brown, 5 Vet. App. 281 (1993). 5. Compensable Rating Under 38 C.F.R. § 3.324 The claim for compensation under 38 C.F.R. § 3.324 is inextricably intertwined with the above remanded claims. 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 decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s electronic claims file any outstanding VA treatment records and private medical records relevant to the Veteran’s claims. 2. After all outstanding records have been associated with the file, schedule the Veteran for a VA examination to determine the etiology of the Veteran’s bilateral hearing loss and tinnitus. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of his current symptomatology, the examiner should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral hearing loss and tinnitus had their onset during, or are otherwise related to, his active duty service, to include his in-service position as a mechanic. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of any right foot condition. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, to include the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of his current symptomatology, the examiner should opine whether it is at least as likely as not (50 percent probability or more) that the Veteran’s right foot condition is related to his period of active service, to include his July 2003 diagnosis of right foot ingrown nail, fungal infection, calluses, and complaint of second toe pain, as well as his June 2004 complaint of right foot pain, blisters, scaling, and athlete’s foot. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. 4. Then, schedule the Veteran for a VA examination to determine the etiology of the Veteran’s sinusitis condition. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, the Veteran’s competent lay statements, as well as the Veteran’s report regarding the onset and progression of her current symptomatology, the examiner should opine as to the following: a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s sinusitis is due to his service-connected allergic rhinitis. b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s sinusitis is aggravated by his service-connected allergic rhinitis. “Aggravation” is defined as any worsening beyond the natural progression of the disability. c) If the Veteran’s sinusitis is NOT due to or aggravated by his service-connected allergic rhinitis please opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s sinusitis condition had its onset during, or is otherwise related to, his active duty service. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly-stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. 5. Lastly, schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of his allergic rhinitis. The record and a copy of this Remand must be made available to the examiner. The examiner should discuss all findings in terms of the Schedule of Ratings for Respiratory System, Diagnostic Code 6522 for Allergic or Vasomotor Rhinitis. The pertinent rating criteria must be provided to the examiner, and the findings reported must be sufficiently complete to allow for a rating under all alternate criteria. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Negron, Associate Counsel