Citation Nr: 1813465 Decision Date: 03/08/18 Archive Date: 03/14/18 DOCKET NO. 13-19 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 3. Entitlement to service connection for a bilateral ankle disorder. 4. Entitlement to service connection for a bilateral knee disorder, to include as secondary to a bilateral ankle disorder. 5. Entitlement to service connection for a lower back disorder, to include as secondary to a bilateral ankle disorder. 6. Entitlement to service connection for an upper back disorder, to include as secondary to a bilateral ankle disorder. 7. Entitlement to service connection for a neck disorder, to include as secondary to a bilateral ankle disorder. 8. Entitlement to service connection for vertigo, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 9. Entitlement to service connection for Meniere's disease, to include as secondary to service-connected PTSD. 10. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected PTSD. 11. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD. 12. Entitlement to service connection for a bilateral toenail disorder. 13. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 14. Entitlement to a disability rating in excess of 10 percent for residual facial scars from shrapnel fragments. 15. Entitlement to an effective date earlier than February 23, 2016 for the grant of service connection for peripheral neuropathy of the right upper extremity. 16. Entitlement to an effective date earlier than February 23, 2016 for the grant of service connection for peripheral neuropathy of the left upper extremity. 17. Entitlement to an effective date earlier than February 23, 2016 for the grant of service connection for peripheral neuropathy of the right lower extremity. 18. Entitlement to an effective date earlier than February 23, 2016 for the grant of service connection for peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to June 1969, including service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Air Medal with "V" device. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2012, April 2014, and August 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND For numerous reasons, the Veteran's claims must be remanded before the Board can issue a final decision. Initially, the Board observes that the Veteran has reported treatment for all of his claimed disabilities at VA medical facilities since 1995. Review of the claims file reflects that the RO has obtained and considered only VA treatment records dating from 2004 through 2015. Accordingly, the RO should request and obtain all VA treatment records from 1995 to the present and associate them with the claims file. Additionally, the Veteran has identified private treatment records from Kaiser Permanente and Dr. W. Bullen for treatment for a bilateral ankle disability and a back disability. While the RO requested the Veteran's treatment records from Kaiser on four occasions, the records have not been associated with the claims file. However, the RO never notified the Veteran that his private treatment records from Kaiser were unavailable, or offered him the opportunity to submit those records in accordance with VA's duty to assist. See 38 C.F.R. § 3.159(e) (2017). Also, the RO made only one request to Dr. Bullen to obtain his private treatment records, rather than making two requests and properly notifying the Veteran if those records are unavailable, in compliance with the duty to assist. See 38 C.F.R. § 3.159(b)(2), and (e). Accordingly, the RO must make additional efforts to obtain the identified private treatment records. If VA is unable to obtain these records, then the Veteran and his representative must be provided notice of their unavailability consistent with 38 C.F.R. § 3.159(e). With regard to the Veteran's claims to reopen the issues of entitlement to service connection for bilateral hearing loss and tinnitus, the RO obtained a VA medical opinion in January 2012 regarding the etiology of the Veteran's bilateral hearing loss and tinnitus. VA is obligated to ensure that all VA opinions provided are adequate, even in situations where an examination may not have been warranted. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) The January 2012 VA opinion at issue here did not provide an adequate rationale for the conclusion that it was less likely than not that the Veteran's bilateral hearing loss and tinnitus are related to his active duty service. The examiner noted that the Veteran displayed normal hearing in 1967, 1969, and 1975 and that he did not report tinnitus until 2004. The absence of in-service evidence of hearing loss is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When the Veteran does not meet the regulatory requirements for a disability at separation, service connection may still be established if there is evidence that the current hearing loss disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993). Additionally, the examiner did not take into consideration the Veteran's competent lay statements regarding in-service noise exposure, his lack of post-service noise exposure, or that he began experiencing constant bilateral tinnitus 30 to 40 years before. Further, it does not appear that the examiner considered the possibility that any or all of the audiological evaluations may have reported results in American Standards Association (ASA) units, rather than the International Standards Organization (ISO)-American National Standards Institute (ANSI) units used today. When the conversion from ASA units to ISO units is considered, there is an indication of hearing loss on the June 1969 separation examination report. See Hensley, 5. Vet. App. at 157 (the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss). Accordingly, the January 2012 VA opinion is inadequate, and a new VA examination should be provided to determine the likely etiology of the currently diagnosed hearing loss and tinnitus. With regard to the Veteran's claims for entitlement to service connection for a bilateral ankle disability, a bilateral knee disorder, a low back disorder, an upper back disorder, and a neck disorder, the Veteran should be provided with a VA examination to assess the etiology of any ankle, knee, back, or neck disorder found. The Veteran has provided lay statements explaining that he injured his ankles, knees, upper and lower back, and neck during service from jumping in and out of helicopters but that he did not seek medical treatment. Review of the Veteran's service personnel records reflects that he was awarded an Air Medal with "V" device. The service personnel records also show that the award was given to the Veteran for heroism in connection with military operations against a hostile force, that the Veteran had "a day long encounter with the enemy forces," and that "[r]epeated low level runs were made utilizing only the door guns, due to expending of heavy ordnance and intense enemy fire." Under 38 U.S.C. § 1154(b) (2102), a combat Veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service. Although the Veteran's service treatment records do not reflect that he injured his ankles, knees, back, or neck during service, the Veteran's lay statements are competent and credible evidence that he incurred injuries during service based upon his receipt of the Air Medal with "V" device and the service personnel records showing that he is a combat veteran. Based on the evidence showing current diagnoses of bilateral ankle, bilateral knee, upper back, lower back, and neck disorders and the Veteran's reports of injuries during service and continued symptomatology thereafter, the Veteran should be provided with a VA examination to determine the etiology of any current bilateral ankle disorder, bilateral knee disorder, low back disorder, upper back disorder, or neck disorder found. 38 U.S.C. § 5103A(d)(2) (2012), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran also contends that his bilateral knee disorder, low back disorder, upper back disorder, and neck disorder were caused or aggravated by his bilateral ankle disability. Accordingly, if service connection for a bilateral ankle disorder is granted, the RO should conduct appropriate development to determine whether any of these claimed disabilities is secondary to his bilateral ankle disability. The record reflects that the Veteran's most recent VA examination for his facial scars was more than six years ago, in January 2012. As discussed above, the most recent VA treatment records in the claims file are dated in 2015. The Board finds that there is insufficient contemporaneous evidence of record to evaluate the Veteran's facial scars. Thus, an updated VA examination is needed to fully and fairly evaluate the Veteran's claim for an increased disability rating. As the Veteran contends that he has numbness associated with his facial scars, the VA examiner should assess whether there is any nerve impairment associated with the Veteran's facial scars, and if so, identify which nerves are affected and the severity of the nerve impairment. The Veteran also contends that he has sleep apnea, hypertension, GERD, vertigo, Meniere's disease which were caused or aggravated by his service-connected PTSD. In support of this contention, the Veteran's representative identified numerous medical treatises which discuss the relationship between PTSD and various disorders. As the Veteran has not undergone a VA examination to determine whether any of these claimed disorders were caused or aggravated by his service-connected PTSD, and he has provided evidence suggesting a link between such disorders and PTSD, the Veteran should be provided a VA examination to determine whether these claimed disabilities were caused or aggravated by his PTSD. If any of the VA treatment records or private treatment records obtained in response to this Remand shows a diagnosis of Meniere's disease, the examiner should also provide an opinion as to the likelihood that Meniere's disease was caused or aggravated by PTSD. Finally, the RO granted service connection for peripheral neuropathy of the bilateral upper and lower extremities in an August 2016 rating decision, assigning a 10 percent rating for each extremity and an effective date of February 23, 2016 for the grant of service connection for each of these disabilities. In February 2017, the Veteran filed a notice of disagreement contesting the effective dates assigned. When a notice of disagreement has been filed, the RO must issue a statement of the case. Manlicon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995) (noting that the filing of a notice of disagreement initiates the appeal process and requires VA to issue a statement of the case). As the RO has not yet issued a statement of the case with regard to these issues, remand is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain all available VA treatment records from 1995 through the present and associate them with the claims file. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. After obtaining any required authorization from the Veteran, obtain the Veteran's private treatment records from Kaiser Permanente and Dr. Bullen. All actions to obtain these records should be documented in the claims file. The RO must make two attempts to obtain the private treatment records, or make a finding that further requests would be futile. If no records are obtained, the RO must provide the Veteran and his representative with a proper notice that includes (a) the identity of the specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claims, and (d) that the appellant is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e). The Veteran and his representative must then be given an opportunity to respond. 3. Provide the Veteran with a new VA audiological examination to determine the existence and etiology of his claimed bilateral hearing loss and tinnitus. The Veteran's claims file must be made available to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. After review of the service and post-service medical evidence of record, and the Veteran's lay statements, the examiner must provide an opinion as to whether the Veteran's bilateral hearing loss and tinnitus are at least as likely as not (i.e. 50 percent probability or more) etiologically related to his period of active military service, to include his military noise exposure. For the purposes of this examination only, the VA examiner should consider the Veteran's lay statements to be credible evidence of in-service and post-service symptoms, as well as in-service noise exposure. In rendering the requested opinion and rationale, the examiner must note that the fact that the service treatment records do not document hearing loss is not fatal to the Veteran's claim and cannot be the only basis by which to reject a possible nexus to service. Additionally, the examiner should discuss the possibility that any or all of the in-service audiological evaluations may have reported results in American Standards Association (ASA) units, rather than the International Standards Organization (ISO)-American National Standards Institute (ANSI) units used today. The opinion must be supported by complete rationale. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his current bilateral ankle disorder, bilateral knee disorder, upper back disorder, lower back disorder, and neck disorder. The claims file must be made available to the examiner and reviewed in conjunction with the examination. All indicated tests, if any, should be conducted. The examiner must provide an opinion, in light of the examination findings, the service and post service medical evidence of record, and the lay statements of record, whether it is at least as likely as not (50 percent probability or more) that the Veteran's current bilateral ankle disorder, bilateral knee disorder, upper back disorder, lower back disorder, or neck disorder had their onset in service or are otherwise causally or etiologically related to a disease or injury incurred in active service, including as to any injuries suffered during combat. A complete rationale must be provided for any opinion stated. 5. If service connection for a bilateral ankle disorder is granted, conduct any development necessary to determine whether service connection is warranted for a bilateral knee disorder, a low back disorder, an upper back disorder, or a neck disorder as secondary to the bilateral ankle disorder, to include obtaining an addendum opinion (if necessary) to determine whether these disabilities are proximately due to, the result of, or aggravated by the Veteran's bilateral ankle disability. 6. Provide the Veteran with a new VA skin examination to assess the current severity of his facial scars. The Veteran's entire claims file must be reviewed by the examiner, and the examiner must specify that all records have been reviewed. All necessary special studies or tests are to be accomplished. With regard to the scars, the examiner should specifically report whether each scar is deep, superficial, linear, nonlinear, unstable, poorly nourished, with repeated ulceration, and/or tender and painful on objective demonstration. For VA adjudication purposes, a superficial scar is one not associated with underlying soft tissue damage, and an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. The size, both width and length, of all scars must be measured and reported. Additionally, the examiner must determine whether there is any nerve damage incurred as a result of the scar. In that regard, the Veteran contends that he has numbness associated with his facial scars. If so, the examiner must identify the damaged nerve and state the severity of the nerve impairment. 7. Provide the Veteran with VA examinations by appropriate examiners to determine the etiology of the Veteran's sleep apnea, hypertension, GERD, vertigo, and Meniere's disease (if the medical evidence obtained shows a diagnosis of Meniere's disease). The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiners, and the examiners must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran's lay statements, the VA examiners must provide the following opinions: *Is it at least as likely as not (i.e., a 50 percent probability or more) that any current sleep apnea, hypertension, GERD, vertigo, and Meniere's disease was caused or incurred as a result of the Veteran's active duty service? *Is it at least as likely as not that any current sleep apnea, hypertension, GERD, vertigo, and Meniere's disease are proximately due to, the result of, or aggravated by the Veteran's service-connected PTSD? Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. A complete rationale for all opinions must be provided. The examiners must consider and discuss the medical treatise evidence cited by the Veteran's representative in an April 2011 argument suggesting that PTSD is linked various conditions in the opinions provided. Also, the examiners are advised that the Veteran is competent to report observable symptomatology, and that the Veteran's lay statements should be presumed to be credible for the purposes of this examination only. 8. The Veteran must be advised of the importance of reporting to the scheduled examinations and of the possible adverse consequences, to include the denial of his claims, for failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2017). 9. Issue a statement of the case and notification of the Veteran's appellate rights for the issues of entitlement to effective dates earlier than February 23, 2016 for the awards of service connection for peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right lower extremity, and peripheral neuropathy of the left lower extremity. 38 C.F.R. § 19.9(c) (2017). The Veteran and his representative are reminded that, to vest the Board with jurisdiction over these issues, a timely substantive appeal must be filed. If the Veteran perfects an appeal, the same should be returned to the Board for appellate review. 10. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims must be re-adjudicated. If any of the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the 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 (2012). _________________________________________________ Evan M. Deichert Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).