Citation Nr: 1807327	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  09-35 970	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for sinusitis.

3. Entitlement to service connection for bilateral heel spurs.

4. Entitlement to an initial compensable disability rating for varicose veins of the left lower extremity. 

5. Entitlement to an initial disability rating higher than 30 percent for an acquired psychiatric disability, described as generalized anxiety disorder, beginning November 1, 2007 and a rating higher than 50 percent beginning June 10, 2016. 


REPRESENTATION

Veteran represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

M. Showalter, Associate Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from May 1981 to October 2007.  These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO).  Jurisdiction now lies with the Winston-Salem, North Carolina RO. 

In February 2013, October 2014, and November 2015 the Board remanded the claims for additional development. 

In June 2017, the Veteran was granted a 50 percent rating for his generalized anxiety disorder effective June 1, 2016.  As that did not constitute a grant of the full benefit sought on appeal, the claim for increase remains before the Board.  See AB v. Brown, 6 Vet. App. 35 (1993).

The issues of bilateral hearing loss, sinusitis, and varicose veins are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran does not have a disability that affects his heels. 

2. From November 1, 2007 to June 9, 2016, the Veteran's acquired psychiatric disorder symptoms included anxiety, depression, and chronic sleep impairment and was described by examiners as "mild." 

3. Beginning June 10, 2016, the Veteran's symptoms and were described by VA examiners as "moderate" and did not affect most aspects of his life.    
 

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral heel spurs have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).

2. An initial rating in excess of 30 percent from November 1, 2007 to June 9, 2016 for the Veteran's acquired psychiatric disorder, described as generalized anxiety disorder, is not warranted.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9400 (2017).

3. A rating in excess of 50 percent beginning June 10, 2016 for the Veteran's acquired psychiatric disorder, described as generalized anxiety disorder, is not warranted.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

The VCAA, in part, describes the VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  The VCAA applies to the instant claims. 

The notice requirements have been met.  VA's duty to notify was satisfied by a letter dated June 2009.  See 38 U.S.C. § 5102, 5103, 5103A; 38 C.F.R. § 3.159.  That letter notified the Veteran of the information needed to substantiate and complete his claims, including notice of information that he was responsible for providing and of the evidence that VA would attempt to obtain.  
	
Regarding the duty to assist, the Veteran's service treatment records (STRs) and relevant post-service treatment records have been obtained.  The agency of original jurisdiction (AOJ) arranged for appropriate VA examinations which were held in April 2007, August 2007, April 2012, February 2015, March 2015, June 2016, and April 2017.  The Board finds that the clinical findings and informed discussion of the history and cause of the Veteran's disabilities in the examinations are sufficient for rating purposes.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-300 (2008).  

The Board also finds that there has been substantial compliance with the prior November 2015 remand with respect to the issues being adjudicated.  See Stegall v. West, 11 Vet. App. 268 (1998).  Examinations were held pursuant to that remand in June 2016.  The Veteran has not identified any available, outstanding records that are relevant to the claims decided herein.  The Board finds that the record as it stands includes adequate, competent evidence to allow the Board to decide the matter on appeal, and that no further evidentiary development is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met and, accordingly, the Board will address the merits of the claims for bilateral heel spurs, and an acquired psychiatric disability. 
 
II. Service Connection - Bilateral Heel Spurs

Legal Criteria

Initially, the Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims being decided.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).  To establish a right to compensation for a present disability, a Veteran 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, the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 

The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).  

Competent (that is, qualified) medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may include statements contained in medical treatises, scientific articles, or research reports.  38 C.F.R. § 3.159(a)(1).

Competent (that is, qualified) lay evidence means evidence not requiring that the person providing it have specialized education, training, or experience.  Lay statements are qualified to establish than an event or circumstance occurred if the statements are provided by a person who has personal knowledge of matters that can be observed and described by a non-expert.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing observable symptoms or reporting that a medical provider gave them a diagnosis in the past.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Lay evidence may be qualified to establish that an event or injury occurred during service, or that a chronic disability began during service.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

The Board will grant the Veteran's claim if the evidence supports the claims or is in relative equipoise.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

Factual Background

STRs show that in April 1984, the Veteran reported right and left foot pain while walking.  Records show that the Veteran had falling arches and was prescribed arch supports.  In STRs dated 2005, the Veteran reported that he did not have any bone or joint deformity.  In June 2007, the Veteran filed for service connection for bilateral "heel spurs." 

In an examination dated August/September 2007, the Veteran did not report difficulty walking, but did report he had surgery for bunions on both feet in 1977 before his time in active service.  The examiner found there were no related problems from that previous surgery shown on examination.  The examiner found that there was a "mild bilateral hallux valgus deformity," but did not find any heel spurs.  

In a VA examination dated February 2015, the examiner noted that x-rays showed "no calcaneal spurs."  In a June 2016 examination, the examiner found that the Veteran did not have any heel spurs on either his right or left foot.  She reiterated that there were no heel spurs shown in the record or in service.  The examiner commented that radiologists note if heel spurs are present when x-rays of the feet are taken.  The examiner stated that the Veteran had several x-rays taken, including after service, but none of those examinations showed heel spurs, including in the February 2015 examination. 

In a separate June 2016 foot examination, the examiner found that the Veteran had hallux valgus and bunions, but not heel spurs.  It was noted that the Veteran had a scar on his foot from bunion surgery 2.4 cm in length and 0.1 cm in width.  

Analysis

The Board finds that there is no evidence that the Veteran currently has a bilateral heel disability or any disability affecting his heels.  Review of STRs, VA examinations, and VA treatment records have provided no evidence of a diagnosis for any heel spurs.  In fact, all VA examinations that have taken x-rays of the Veteran's feet show that no bone deformities in his heels.  Essentially there is no evidence in the record that would allow the Board to find that the Veteran has a bilateral heel disability, including heel spurs, that could be service connected.  Without a current disability, the Veteran's service-connection claim for bilateral heel spurs must be denied.  See 38 C.F.R. §§ 3.102, 3.303; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (existence of a current disability is the cornerstone of a claim for VA disability compensation).

III. Increased Rating - Acquired Psychiatric Disability

Legal Criteria

Currently the Veteran is service connected for generalized anxiety disorder at 30 percent beginning November 1, 2007 and 50 percent beginning June 10, 2016.  Under DC 9400, generalized anxiety disorder is rated 30 percent when there is occupational and social impairment  with occasional decrease in work efficiency and intermittent periods of inability to perform occupation tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. § 4.130, DC 9400. 

A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long- term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.  Id. 

A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id. 

Ratings are assigned according to the manifestation of particular symptoms.  However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002); see Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists).  Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not limited to those symptoms listed in the General Formula.  

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission.  38 C.F.R. § 4.126(a).  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  Id.  

The entire history of the disability must be considered and, if appropriate, separate "staged" ratings may be assigned for separate periods of time, based on the facts found.  Fenderson v. West, 12 Vet. App. 119 (1999). 

Factual Background

In August 2007, the Veteran reported symptoms of depression, anxiety, and sleep impairment.  He stated that despite his symptoms, he was very close with his family and friends and enjoyed his time with relatives.  The examiner found no impairment in thought processes or in the Veteran's ability to communicate.  The Veteran denied delusions, hallucinations, or thoughts of suicide. 

In VA treatment records dated August 2009, the Veteran reported anxiety with fatigue as well as some short-term memory troubles.  In VA treatment records dated February 2011, the Veteran reported that he continued to have difficulty sleeping and experienced "a lot of emotional swings."  He reported that at times he cried because of the stresses he faced at his job as a teacher.  

VA treatment records show that in August 2011, the Veteran reported depression, anxiety, anger issues, chronic sleep issues, and difficulties in his marriage.  In that month, the Veteran did not demonstrate any signs or symptoms of suicidal ideation.   

In an April 2012 VA examination, the Veteran reported a "long-standing history of excessive anxiety and worry."  He reported feeling restless, problems concentrating, irritability, and problems sleeping.  The examiner found that the Veteran had occupational and social impairment due to mild symptoms.  The Veteran reported that he was estranged from his family, but that his marriage and relationship with his children were good.  The Veteran reported that his anxiety was about the same level that it was when he first left the military.

January to July 2014 mental treatment notes show that the Veteran reported that his psychiatric symptoms had worsened.  During this time, the Veteran stated that he had higher levels of anxiety.  Treatment notes from January 2014 show that he reported he had been diagnosed with PTSD.  He described poor concentration, anger issues, but denied suicidal and homicidal ideation.  He reported in one month over the period that he experienced "5 panic attacks per week."  He reported that he had intrusive thoughts three to four times a week, which caused him to "break down and cry."  He also reported nightmares, hypervigilance, and difficulty in crowds.  He stated that he was "extremely emotional," and that he regularly found himself "welling up, breaking down."  In June 2014, the VA social worker noted that the Veteran had no "psychomotor abnormalities" and that he had normal speech and thought processes.  He had no delusion or suicidal ideations.  His language and memory were intact and insight and judgment were noted to be fair.  

In August through October 2014, the Veteran attended group counseling to help him cope with his anger issues.  During this time he described his irrational anger, he said that he would physically tense when he became upset.  

In July 2015 VA treatment notes, the Veteran reported worsening depression since November 2014.  He reported that he experienced depressed mood, increased frequency of tearfulness, frequent nightmares, increased suspiciousness, and poor sleep.  He reported that every day he was "in pain" but that his symptoms kept him "strong and reminds me of those who didn't come home."  The psychologist found that the Veteran had difficulty with crowds and groups of people. 

In a depression screening conducted in February 2015 the Veteran had a negative screen for depression.  At that time, he did not report depressed feelings or that he had lost interest or pleasure in recreational activities. 

In a VA psychological examination dated June 2016, the examiner found that the Veteran's symptoms caused occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although the Veteran was generally functioning satisfactorily with normal routine behavior.  The Veteran reported that he was restless and guarded on some issues which kept him from participating in some social activities.  He reported increasing marital difficulties.  The examiner noted "mild-to-moderate psychosocial maladjustment."  The Veteran reported that he continued to work fulltime, but was having difficulty handling stress at his job.  The examiner found that the Veteran still had "moderate levels of anxiety, depression, irritability, and concentration issues." 

In a private psychological evaluation dated March 2017, the Veteran reported that he had sleep impairment, "plagued with a heaviness on his chest with ruminating worries."  He reported feeling angry and that he was physically limited because of his mood swings.  The examiner noted that the Veteran had been suspended from work on several occasions for misconduct related to antagonistic interactions.  The Veteran admitted to being out of control in recent situations and succumbing to the stressful circumstances at his job.  It was noted that he lacked "viable social interactions" and struggled to establish and maintain effective relationships.  The Veteran's symptoms were noted at that time to include depressed mood, panic attacks more than once a week, racing thoughts, hypervigilance, "obsessional rituals, impaired motivation, short term memory lapses, and social withdrawal."  The examiner opined that the Veteran demonstrated social and occupational deficiencies in most areas of his life. 

In an April 2017 VA examination, the examiner noted that the Veteran's alcohol use and anxiety were mutually aggravating conditions, but noted that he could not distinguish their impact.  The examiner found that the Veteran's symptoms caused occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although he was generally functioning satisfactorily with normal routine behavior, self-care, and conversation.  The Veteran reported "no change since last examination" though he did note some memory issues.  The examiner noted that the Veteran "appears to be more symptomatic compared to the last examinations in 2012 and 2016." 

Analysis

Beginning with the initial period, November 1, 2007 to June 9, 2016, the Board finds that the Veteran was appropriately rated at 30 percent and accordingly a higher rating is not warranted.  Over this entire initial period, the Veteran's judgment, thinking, and memory were assessed to be normal or fair.  Examiners found that the Veteran's thought processes were normal and while he had some minor short-term memory lapses, his long-term memory remained intact.  In 2014, the Veteran did endorse difficulties in concentration, but there is no evidence that this caused difficulties in understanding complex tasks or commands.  The record shows very little deficiency in thought processes or judgment. 

While treatment records from 2014 note that the Veteran reported "5 panic attacks per week" at one point in time, other treatment records show that he did not regularly have panic attacks.  He did report "a lot of emotional swings" during this period, which caused difficulties at work and with some of his relationships.  VA examinations during this period noted that the Veteran's symptoms were "mild" and that his symptoms were more severe during periods of significant stress.  While the Veteran's symptoms clearly caused difficulties in some aspects of his life, his overall disability picture does not meet criteria for a higher evaluation. 

Looking to the facts for the initial period, the Board finds that a 30 percent evaluation is the correct evaluation for the degree of the Veteran's symptoms.  The preponderance of the evidence is against the claim for an increased rating and, accordingly, the doctrine of equipoise (the "benefit of the doubt") does not apply.  

For the period beginning June 10, 2016, the Board also finds that the Veteran was appropriately rated at 50 percent for his psychological symptoms and accordingly a higher rating is not warranted.  Beginning in this period, VA examiners found that the Veteran's psychiatric symptoms were moderate.  Specifically, some of these symptoms negatively impacted his ability to work and strained his relationship with his wife.  For a 70 percent evaluation, the Veteran would need to show that his symptoms impact most areas of his life.  DC 9400.  But the record shows that the Veteran's psychological symptoms only affected some parts of his social and occupational life.   

While the April 2017 examiner noted that the Veteran's psychiatric symptoms had worsened from 2012 and 2016, his symptoms did not reach a level that would allow for a higher evaluation.  Despite symptoms affecting some of his occupational and social functioning, the Veteran did not experience impairment of thought or judgment.  Each VA examination has noted that he has logical thought processes and normal judgment.  His speech was noted to be normal in all of his examinations.  He was oriented to time and place when interviewed.  While he had some social difficulties, he was still able to maintain a relationship with his family.  He did not experience continuous panic and all of his VA examinations and treatment records note an absence of suicidal or homicidal ideation.  Overall, the Veteran's psychiatric symptoms do not affect most areas of his life. 

Overall, the Veteran's psychiatric symptoms do not warrant a higher evaluation of 70 percent.  The preponderance of the evidence is against the claim for an increased rating and, accordingly, the doctrine of equipoise (the "benefit of the doubt") does not apply.

The Board notes that this decision does not leave the Veteran without recourse.  If the service-connected disability should worsen in the future, the Veteran is free to file a new claim for an increased rating.  However, for the Board to award additional compensation based on the mere potential for such worsening would be premature at this time.

The Board is grateful to the Veteran for his honorable service.  





ORDER

Entitlement to service connection for bilateral heel spurs is denied. 

Entitlement to an initial disability rating higher than 30 percent for an acquired psychiatric disability, described as generalized anxiety disorder, beginning November 1, 2007 and a rating higher than 50 percent beginning June 10, 2016 is denied. 


REMAND

Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran's claims so that every possible consideration is afforded.

For the issue of varicose veins, the AOJ failed to follow the previous remand instructions.  The last remand instructed the AOJ to request that the Veteran report a history of any symptoms related to varicose veins in his left lower extremity beginning in November 2007 (immediately following his separation from service), including before and after his December 2010 ablation procedure.  The intent of the instruction was to ascertain whether his vein disability warranted a higher evaluation, as there were indications that before his ablation procedure he had associated pain and other symptoms.  

The record however does not show that the RO ever requested this information from the Veteran.  In November 2016, there was an internal memo that instructed the RO to request this information, but there was no correspondence sent to the Veteran after this point and the Veteran did not provide any correspondence regarding his diagnosis.  The United States Court of Appeals for Veterans Claims (court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders."  Stegall v. West, 11 Vet. App. 268, 271 (1998).  Therefore, another remand is required so that the RO can properly request this information from the Veteran. 

For the issue of bilateral hearing loss, the Board needs clarification on whether the Veteran has a hearing loss disability for VA purposes.  In the June 2016 audiological examination, the examiner ultimately found that the Veteran's hearing loss was caused by conceded noise exposure in service.  In that examination however, the Veteran's audiological testing did not show a disability of hearing loss under 38 C.F.R. § 3.385, specifically showing a right ear speech recognition score of 94% and a left ear recognition score of 96% and the following audiogram results: 


1000Hz
2000Hz
3000Hz
4000Hz
Average
Right Ear
10
10
20
15
14
Left Ear
10
15
20
20
17

In fact, for the last ten audiological examinations conducted during and after service, the Veteran only had a disability under the statute in April 2007 (specifically only in his left ear) and in March 2015 (according to Maryland CNC scores).  Service connection requires a diagnosed disability.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The Board requests that the examiner note whether or not the Veteran currently has a hearing loss disability for VA purposes and if so when it began.  

Additionally, the June 2016 examiner noted that the Veteran had normal hearing during active duty with "exception of borderline normal hearing in the left ear at test and retest in April 2007."  The examiner found that the degree of the Veteran's hearing loss at his separation from service was consistent with "conductive component or temporary flat loss due to ototoxic medications reported at separation."  The Board requests that the examiner clarify his statement, specifically what medication was causing his "conductive component or temporary flat loss," and whether or not this indicative that the Veteran actually had a hearing disability at that time. 

For the issue of sinusitis, the Board requires clarification on whether he has a disability and whether that disability is related to service.  A February 2015 examiner found that the Veteran did not have a current diagnosis of sinusitis, but also curiously noted that the Veteran did have a diagnosis of sinusitis and had a history of sinusitis.  Pursuant to the June 2016 remand, a very short opinion, provided in October 2016 (that may have been largely copied from February 2015), noted that STRs and treatment records from 2010 to 2016 were silent for chronic sinusitis.  As stated in previous examinations, however, the Veteran had noted instances of sinusitis throughout 1981 and in April 2007.  Additionally, he was diagnosed with sinusitis in VA examination dated August 2007.  The Board requires clarification on whether the Veteran currently experiences sinusitis and if he does not, why previous examinations have shown that he does.  If a disability is found or shown by the record, an opinion is also required on whether that disability was caused by or relates to events in service. 

Accordingly, the case is REMANDED for the following action:

1. The AOJ should request the Veteran to report the history of any symptoms related to varicose veins in his left lower extremity from November 2007 (immediately following his separation from service) through the present, including before and after a December 2010 ablation procedure.  The AOJ should request the Veteran state in particular what periods, if any, he had swelling of the left leg, skin discoloration or rash on the leg, sores on his leg, and/or any other related symptoms that would allow for a higher evaluation for any period on appeal. 

2. The AOJ should return the claims file to the June 2016 VA examiner, or another appropriate examiner if she is unavailable, to arrange for an addendum opinion to address the questions regarding the Veteran's hearing loss.  The claims file and copies of all pertinent records must be reviewed by the examiner in providing the addendum opinion.  The need for another examination is left to the discretion of the examiner.  Based on this review of the record, the examiner should provide opinions that respond to the following:  
	
a) Please identify whether the Veteran currently has a hearing loss disability for VA purposes as defined under 38 C.F.R. § 3.385.  If there is a hearing loss disability shown by the record, when did the disability begin? 

b) Please state why the examiner found that the Veteran's 2007 audiogram results were consistent with "conductive component or temporary flat loss due to ototoxic medications reported at separation."  Did the Veteran have a hearing loss disability as defined by 38 C.F.R. § 3.385 during this period? 

c) The examiner should provide a complete rationale in support of any opinions offered.  If the examiner is unable to provide any requested opinion, he or she must explain why such an opinion would be speculative. 


3. The AOJ should return the claims file to a VA examiner to arrange for an addendum opinion to address the questions regarding the Veteran's sinusitis.  The claims file and copies of all pertinent records must be reviewed by the examiner in providing the addendum opinion.  The need for another examination is left to the discretion of the examiner.  The Board notes that the Veteran had several noted instances of sinusitis in service and was diagnosed with sinusitis after service.  Based on this review of the record, the examiner should provide opinions that respond to the following:  

a) Does the Veteran have a diagnosis of sinusitis?  If not, please explain why previous treatment records and examinations show a diagnosis for the disability.  (i.e. was the condition incorrectly diagnosed? did the disability resolve?)

b) If shown, please identify the likely cause for the diagnosed sinusitis.  Specifically, is it at least as likely as not (a 50% or better probability) that such disability was incurred in, related to, or caused by any event during the Veteran's military service?  The examiner should provide a complete rationale in support of any opinions offered.  If the examiner is unable to provide any requested opinion, he or she must explain why such an opinion would be speculative. 


4. A detailed explanation (rationale) is requested for all opinions provided.  (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.  Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested).

After undertaking the above actions and any other necessary development, the AOJ should then review the record and readjudicate the claim.  If the claim remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the record to the Board. 


The Veteran has the right to submit additional evidence and argument on the remanded matter.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  As a remand, this matter must be handled expeditiously.  38 U.S.C. §§ 5109B, 7112 (2012).





______________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs