Citation Nr: 1816167	
Decision Date: 03/14/18    Archive Date: 03/23/18

DOCKET NO.  12-25 336	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss. 

2.  Entitlement to service connection for pes planus.

3.  Entitlement to service connection for right great toe injury.

4.  Entitlement to service connection for sleep apnea.

5.  Entitlement to service connection for a jaw disability, to include temporomandibular joint disease (TMJ) and/or residuals from extraction of wisdom teeth.

6.  Entitlement to service connection for an upper extremity disability, to include as due to a bilateral shoulder or cervical neck condition.




REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Matthew Schlickenmaier, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1984 to April 1992.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision by the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO).

In May 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the claims file.

In August 2015, the Board remanded the above issues, as well as the issue of entitlement to service connection for a hernia disability, for additional development.  Thereafter, a January 2017 rating decision granted service connection for inguinal hernia and post-surgical hernia repair scar.  The remaining issues are once again before the Board.

The Board recognizes that at an October 2015 VA jaw examination, the Veteran indicated that he wished to claim entitlement to service connection for lost teeth.  The Veteran and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary.  38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017).

The issues of entitlement to service connection for pes planus, sleep apnea, a right great toe disability and an upper extremity disability 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 evidence shows that the Veteran's current bilateral hearing loss did not manifest in service, or for many years thereafter, and is unrelated to any noise exposure during active duty service.

2.  The evidence shows that the Veteran's current TMJ disorder did not manifest in service, or for many years thereafter, and is unrelated to active duty service, to include extraction of wisdom teeth.


CONCLUSIONS OF LAW

1.  The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017).

2.  The criteria for establishing entitlement to service connection for a jaw disability have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The requirements of 38 U.S.C. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  In April 2009, VA notified the Veteran of the information and evidence needed to substantiate his claims, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.  VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  There is no evidence that additional records have yet to be requested, or that additional examinations are in order.  Although the Board is remanding the appeal to attempt to obtain mental health treatment records dated from the Veteran's period of active duty, which are potentially relevant to the issue of sleep apnea, there is no indication that any such records pertain to any of the issues decided herein.  Pursuant to the Board's August 2015 remand, the AOJ obtained outstanding VA treatment records and provided the Veteran with the information and forms necessary for VA to assist him in obtaining private treatment records identified in the prior remand; the Veteran did not return signed release forms identifying potentially relevant private treatment and so VA could not assist him in obtaining such records.  In addition, the AOJ obtained VA examination and opinions addressing the etiology of any current jaw and hearing loss disabilities, which the Board finds adequate for reasons described in further detail below.  These actions constitute substantial compliance with the prior remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).  Finally, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the hearing.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, 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.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).  Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease such as sensorineural hearing loss is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected.  If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required.  Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Hearing Loss

A June 2009 VA examiner determined that the Veteran did not have a hearing loss for VA purposes under 38 C.F.R. § 3.385; in June 2011, however, a private hearing evaluation determined that the Veteran had a hearing loss characterized as moderate.  He has therefore met the current disability requirement.  The question is thus whether hearing loss is related to service.

Service treatment records show that a July 1984 entrance examination noted no hearing loss defects.  Audiometric testing revealed the following, with puretone thresholds recorded in decibels:


500
1000
2000
3000
4000
6000
Right
5
0
0
0
0
0
Left
10
5
5
0
0
15

During service, hearing tests reflect that the Veteran was routinely exposed to hazardous noise exposure but regularly wore earplugs for hearing protection.  Audiograms conducted in October 1986, September 1987, September 1988, October 1989, and August 1990 consistently reveal puretone threshold results between zero and 10 decibels with few exceptions where the left ear was shown to be at 20 decibels: October 1986 (500 Hertz), September 1987 (6000 Hertz), October 1989 (6000 Hertz), and August 1990 (3000 and 6000 Hertz).

At separation in August 1991, the Veteran denied hearing loss.  Audiometric testing revealed the following, with puretone thresholds recorded in decibels:


500
1000
2000
3000
4000
6000
Right
5
0
0
10
0
0
Left
0
0
0
5
0
10

In March 2009, the Veteran submitted his claim for service connection for hearing loss and, as noted above, at the June 2009 VA examination, audiometric testing did not shows results rising to the level of hearing loss as defined in 38 C.F.R. § 3.385.  The Veteran reported that during service, he had been exposed to noise from tanks, tank recovery vehicles, gunfire motorpool and aircraft on the flightline but he denied any post-service noise exposure.  The examiner diagnosed him with normal hearing.  After reviewing the claims file, the examiner, an audiologist, opined that because he had normal hearing at both entrance and separation, there was no significant threshold during service and therefore any current hearing loss was less likely as not related to service.

In August 2015, the Board remanded the appeal for another audiological examination after noting that the Veteran had submitted the June 2011 private hearing test which indicated that the Veteran had a current hearing loss.

In October 2015, the Veteran was afforded another VA examination.  Audiological testing again failed to show a current hearing loss in accordance with 38 C.F.R. § 3.385: there were no readings of 40 decibels or greater; both the left and the right ear revealed only two of the requisite frequencies at 26 decibels or greater; and Maryland CNC speech recognition was 94 percent or greater.  The examiner nonetheless diagnosed the Veteran with bilateral sensorineural hearing loss.  After reviewing the claims file and examining the Veteran, the examiner, an audiologist, opined that it was less likely as not that the Veteran's hearing loss was related to service.  The examiner noted that the enlistment audiogram revealed normal hearing as did the audiograms dated from October 1986, September 1987, September 1988, October 1989, and August 1990.  The August 1991 separation audiogram also revealed normal hearing bilaterally without evidence of a significant threshold shift since enlistment.  Moreover, the June 2009 audiogram, conducted 17 years after separation from service, continued to show normal hearing.  Hence, because the Institute of Medicine has reported, based on the understanding of auditory physiology, that hearing loss from noise exposure injuries occurs immediately following exposure, the examiner concluded that the normal audiograms suggested that the Veteran did not incur any noise-induced hearing loss disability during service.  Accordingly, there was no scientific basis to conclude that any current hearing loss was related to the Veteran's period of active duty service.

Based on the above, the Board finds that the weight of the evidence is against the claim.  As the October 2015 opinion was provided by a VA audiologist and supported by a reasoned opinion that is consistent with the evidence of record, the Board affords it significant probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).  Although not explicitly addressed, it is clear, based on the examiner's accurate description of the evidence in the service treatment records as well as her statement that she reviewed the claims file, that the examiner considered the fact that the Veteran worked in environments with significant hazardous noise exposure during service.  Her statement that "there is no evidence in the record that the Veteran sustained noise injuries based on audiograms" is not a denial of the fact that he worked in environments with hazardous noise but rather a statement that such environments did not result in any permanent hearing loss disability.  See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record).  In addition, although the Board previously found the June 2009 VA opinion insufficient to evaluate the appeal given the subsequent evidence of a current hearing loss disability, the Board finds it significant that the June 2009 VA examiner concluded, after also reviewing the claims file, that any current hearing loss was not related to service because there was no significant threshold shift during service.  The fact that a different VA examiner arrived at the same conclusion for essentially the same reasons as the October 2015 VA examiner adds weight to the October 2015 opinion.  Significantly, there is no contrary opinion.

The Board has considered the Veteran's contention that his current hearing loss was caused by service.  As to the Veteran's assertion of the existence of a medical nexus between his current hearing loss and service, such an assertion does not provide persuasive support for the claim.  Simply stated, the Veteran is not competent to address such a matter.  He has not demonstrated that he has any education, training or expertise to discuss the etiology of such a disability and is, thus, a layperson in this regard.  See 38 C.F.R. § 3.159(a)(1).  While it is in error to categorically reject layperson nexus evidence as incompetent, the Board may consider the facts of a particular case to determine the layperson's competence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  One factor to consider is the complexity of the question to be determined.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007).

Here, the matter of whether the Veteran's current hearing loss is etiologically related to his military service is not a matter within the realm of knowledge of a layperson; rather, particularly given the facts of this case, such is a complex question that requires education, training and expertise.  Id.  As the Veteran's lay assertions in this regard have no probative value, he can neither support his claim, nor counter the probative opinion of record, on the basis of lay assertions, alone.

In sum, even conceding hazardous in-service noise exposure, the most probative evidence of record shows that the Veteran's bilateral hearing loss did not manifest in service, or for many years thereafter, and is unrelated to any noise exposure during active duty service.  Hence, he has not met the criteria for service connection, to include by application of the presumptive criteria for chronic diseases.  38 C.F.R. § 3.309(a).  The Board also observes that the most probative evidence shows that hearing loss did not exist and was not "noted" in service.  Thus, the provisions of 38 C.F.R. § 3.303(b) pertaining to chronicity or continuity of symptomatology are not for application.

For the foregoing reasons, the Board finds that the claim for service connection for hearing loss must be denied.  In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  38 U.S.C. § 5107.

Jaw Disability

Turning to the claim for service connection for TMJ, the Veteran reports that he had wisdom teeth extracted in October 1990 during service and has testified that later that day, he passed out, had to be transported to the emergency room, and that the dentist fractured his jaw during the extraction.  In support of his claim, the Veteran submitted a September 2009 private opinion letter from a dentist, Dr. Carlee C. Boles, who stated that after reviewing the service treatment records and examining the Veteran, the Veteran had TMJ disorder which was related to the claimed fractured jaw.

In October 2015, a VA examiner, a dentist, noted, after reviewing the claims file and examining the Veteran, that there was no documentation of a fractured jaw as claimed by the Veteran and no evidence of any trauma to the jaw, face of teeth.  In this regard, service treatment records reflected extraction of wisdom teeth in October 1990 with no annotation of any adverse events.  Subsequent records show treatment for pulsating pain near the molar extraction site and he was given pain medications and placed on quarters.  A follow-up note states that he was "feeling pretty good...some food trapping."  While the service treatment records show an October 1990 emergency care and treatment note which documents complaints of pain secondary to extracted wisdom teeth with dressing removal, there is no additional documentation to suggest any other post-operative complications associated with the molar extractions.  Following the October 1990 medical and dental service treatment record entries, there is no mention of a jaw disability, fracture or post-operative third molar residual effect.  Moreover, on clinical and radiographic examination, there was no evidence of alveolar defects associated with the right maxilla or mandible and it was noted that the range of mandibular motion was within normal limits, and that the Veteran presented with myalgia of the muscle of mastication perpetuated by bruxing and clenching.

The examiner also noted that service treatment records did not show any evidence of any jaw pain other than that associated with the third molar extractions in October 1990.  All dental and medical visits prior to and subsequent to the third molar extractions do not indicate any TMJ disorders.

As to the September 2009 private opinion, the examiner again noted that the claims file did not support the proposition that the Veteran suffered a jaw fracture, or any other jaw disability, during service or that any jaw disability resulted from the wisdom teeth extraction in October 1990.  Moreover, on radiographic examination associated with the October 2015 examination, the mandible was found to be intact with an intact inferior oblique line as well as intact alveolar bone with no suggestion of a history of a fracture.

In sum, therefore, the examiner concluded that there was no evidence that a jaw disability, to include a TMJ disorder, was incurred in service or was otherwise related to service, to include residuals from extraction of wisdom teeth. 

Based on the above, the Board finds that a preponderance of the evidence is against the claim.  While the service treatment records do document that the Veteran had to be transported to the Army base hospital due to an episode of syncope, the records do not document any diagnosis or treatment for a fractured jaw.  In this regard, October 1990 service treatment records show that the Veteran underwent wisdom tooth extraction which resulted in temporary residual pain.  At separation in August 1991, however, clinical evaluation revealed a normal head, face, and mouth, and there were no dental defects or diseases.  The Veteran reported a history of ear, nose and throat trouble but denied a history of broken bones.  A September 1991 service dental history record shows that the Veteran went into shock after the wisdom teeth extraction but does not mention a jaw fracture.

Hence, as the October 2015 opinion was provided by a VA examiner and is supported by a reasoned opinion that is consistent with the evidence of record, including the service treatment records and post-service treatment records, the Board affords it significant probative value.  See Nieves-Rodriguez, 22 Vet. App. at 304.  It also significantly outweighs the September 2009 private opinion.  Dr. Boles, as noted above, based her conclusion that the Veteran's TMJ was due to service on the unsubstantiated premise that the Veteran fractured his jaw during service.  Although her report indicated she reviewed the service treatment records, as noted, there is no in-service documentation of a fractured jaw and the October 2015 VA examiner's assessment of current radiographic evidence of the jaw was that it did not suggest a history of fracture.  Accordingly, the Board affords this opinion little, if any, probative value.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993).

To the extent the Veteran has offered his opinion that he has a jaw disability that is related to service, his statements regarding the cause of any jaw condition are lay statements that purport to provide a nexus opinion.  As above, the Veteran has not demonstrated that he has any education, training or expertise to discuss the etiology of such a disability and is, thus, a layperson.  The matter of whether any jaw disability is related to service is a complex question requiring clinical testing to assess and diagnose the underlying condition and training to make the appropriate interpretations and conclusions about what the testing demonstrates in conjunction with the symptoms reported to determine the cause.  As such, the Board finds the Veteran's statements not competent for this purpose.  See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1377.

In sum, the competent and most probative evidence of record is the October 2015 VA opinion which concluded that the Veteran's current TMJ did not manifest in service, or for many years thereafter, and is unrelated to active duty service, to include extraction of wisdom teeth.  The examiner considered all the evidence of record, provided a thorough rationale for her conclusion, and added the weight of medical knowledge which adds to the probative value.

For the foregoing reasons, the Board finds that the claim for service connection for a jaw disability must be denied.  In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  38 U.S.C. § 5107.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for a jaw disability, to include TMJ and/or residuals from extraction of wisdom teeth, is denied.


REMAND

As to sleep apnea, in August 2015, the Board noted that the Veteran had reported that he was evaluated by mental health experts in service because his commanding officer thought that his fatigue was due to a mental health disability and not some other cause such as sleep apnea.  The Board further noted that service treatment records indicated the Veteran was seen by mental health professionals in March 1986, but that the actual March 1986 treatment notes themselves have not been associated with the file.  The Board therefore directed the AOJ to ask the appropriate Federal custodian for any records of mental health consultations or treatment of the Veteran in March 1986 while serving in the 546th Maintenance Company in Germany and, if no records were found, to notify the Veteran.

May and July 2017 Personal Information Exchange System requests show that the AOJ requested active duty inpatient clinical records for mental health treatment for the above-described time and place.  A September 2016 response indicates, however, that no search was possible based on the information furnished because the National Personnel Records Center did not have records from that facility.  The record does not indicate, however, that the Veteran was ever notified of this fact.  Moreover, the March 1986 service treatment record referencing mental health treatment does not indicate that the Veteran was admitted to an inpatient facility.  As such, it is possible that the request for inpatient clinical records was too narrow.  Accordingly, another attempt should be made to obtain these records and, if none are found, the Veteran should receive appropriate notification.

As to pes planus, in August 2015, the Board observed that such disability was noted upon entrance into active duty service and remanded the issue for an opinion as to whether the Veteran's pes planus condition, noted upon entrance to service, worsened in service, and, if so, whether it is clear and unmistakable that is was not aggravated by service.

In October 2015, a VA examiner checked a box indicating that "the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness."  The examiner noted that the Veteran had mild asymptomatic pes planus on entry into service but by separation, there were complaints of calcium deposits being removed from his feet but no complaints of chronic foot pain.  The examiner further remarked that it was "more likely than not that his pes planus has followed a natural progression in the 31 years after first entering service" in light of the lack of complaints during service, the lack of post-service treatment records from 1992 to 2009, and the notation of "mild to moderate pes planus" at the June 2009 VA examination.

Initially, the Board notes that the critical question in this case is whether pes planus worsened in service, and, if so, whether it is clear and unmistakable that it was not aggravated by service.  Because pes planus was noted upon entrance, there is no need for the examiner to address whether pes planus clearly and unmistakably existed prior to service.  Compare 38 U.S.C. § 1153 (Aggravation) with 38 U.S.C. § 1111 (Presumption of sound condition).  The opinion above does not explicitly address the first question - whether pes planus worsened in service - and applies the wrong evidentiary standard to the conclusion that any worsening was due to the natural progression of the disease.  The opinion also appears to consider whether pes planus worsened at any time since service even though the focus is on whether there was worsening during the period of active duty service.  Accordingly, the Board finds that an addendum opinion is needed.

As to an upper extremity disability, in August 2015, the Board remanded the issue for a VA examination and opinion.  In relevant part, the examiner was to discuss the clinical significance of the Veteran's statements regarding an incident where a spinning turret knocked the Veteran off a vehicle causing him to land on and injure his shoulder and another incident where in training for rappelling down a tower, he almost fell but injured his shoulder when he managed to hang on with one hand.  The October 2015 VA examiner does not address the Veteran's statement that he fell off a vehicle and although the examiner notes in the examination report that the Veteran reported that he fell while rappelling off a tower, the examiner does not discuss the clinical significance of this statement.  Accordingly, the Board finds that an addendum opinion is needed.

Finally, as to the right great toe, the Veteran contends that during service, he was helping to move a 2 and 1/2 ton engine when it slipped out of the hoist and fell onto his right great toe.  In August 2015, the Board noted that the June 2009 VA examiner diagnosed capsulitis of the right great toe but stated that any right great toe disability was not related to service because the service treatment records do not mention any injury to the right great toe.  The Board found that the examiner had failed to take into account the Veteran's lay evidence of an accident causing injury to the right great toe and therefore remanded the appeal for another VA examination and opinion.  The examiner was to specifically discuss the Veteran's testimony and evidence of an engine falling on his right great toe and was advised that he must not rely solely on the absence of a right toe injury in service as the basis for a negative opinion.

In October 2015, a VA examiner remarked, following clinical evaluation, that the Veteran had subjective complaints of pain in his toe but there were no objective findings of a disorder and therefore no current diagnosis for this claim.  In a subsequent opinion, the examiner acknowledged that the Veteran had claimed that a heavy object had dropped on his toe but found that because the service treatment records showed no evidence of complaints or treatment relating to the right great toe, as well as no post-service evidence of a right great toe disorder, it was less likely as not that any current right great toe disorder was related to service.

Initially, the Board observes that in concluding that the Veteran had no current right great toe disability, the examiner failed to address the June 2009 diagnosis of capsulitis.  Moreover, in offering an opinion as to the etiology of any current right great toe disorder, the examiner appears to have relied largely on the absence of a right toe injury in service.  Accordingly, the Board finds that an addendum opinion is needed.

Accordingly, the case is REMANDED for the following action:

1.  Ask the appropriate Federal custodian for any records of mental health consultations or treatment of the Veteran in March 1986 while serving in the 546th Maintenance Company in Germany.

If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e).

2.  Forward the entire claims file to the examiner who prepared the October 2015 VA opinion regarding pes planus, or, if that examiner is unavailable, to another suitably qualified VA examiner.  The claims file should be reviewed by the examiner.  If examination is indicated, it should be scheduled in accordance with applicable procedures.

The examiner is asked whether the Veteran's pes planus condition, noted upon entrance to service, worsened in service, and, if so, whether it is clear and unmistakable (i.e obvious and manifest) that it was not aggravated by service.  In other words, is it clear and unmistakable that any worsening in the Veteran's pes planus condition during service was due to the natural progression of the disability?

The examiner is advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms.  In this instance, aggravation connotes a permanent worsening above the base level of disability, not merely acute and transitory increases in symptoms or complaints.

A complete rationale for any opinion offered should be provided.
3.  Forward the entire claims file to the examiner who prepared the October 2015 VA opinion regarding any upper extremity disability, or, if that examiner is unavailable, to another suitably qualified VA examiner.  The claims file should be reviewed by the examiner.  If examination is indicated, it should be scheduled in accordance with applicable procedures.

Regarding the conclusion that the Veteran's bilateral shoulder impingement is not related to service, the examiner is asked to discuss the clinical significance of the Veteran's statements regarding an incident where a spinning turret knocked the Veteran off the vehicle causing him to land on and injure his shoulder and another incident where in training for rappelling down a tower, he almost fell but injured his shoulder when he managed to hang on with one hand.

A complete rationale for any opinion offered should be provided.

4.  Forward the entire claims file to the examiner who prepared the October 2015 VA opinion regarding the right great toe, or, if that examiner is unavailable, to another suitably qualified VA examiner.  The claims file should be reviewed by the examiner.  If examination is indicated, it should be scheduled in accordance with applicable procedures.

The examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current right great toe disability began in service, was caused by service, or is otherwise related to service.

In answering this question, the examiner should address the June 2009 diagnosis of capsulitis of the right great toe and the Veteran's testimony and evidence of an engine falling on his right great toe.  The examiner must not rely solely on the absence of a right toe injury in service as the basis for a negative opinion.

A complete rationale for any opinion offered should be provided.

5.  After completion of the above, readjudicate the claims.  If any benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112.



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs