Citation Nr: 18111988 Decision Date: 06/18/18 Archive Date: 06/18/18 DOCKET NO. 14-15 799 DATE: June 18, 2018 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for Hepatitis C is remanded. Entitlement to service connection for right lower extremity sciatica, to include as secondary to a service-connected low back disability is remanded. Entitlement to service connection for left lower extremity sciatica, to include as secondary to a service-connected low back disability is remanded. Entitlement to service connection for a variously diagnosed psychiatric disability, to include anxiety, depression, and mood disorder is remanded. Entitlement to a rating in excess of 20 percent for lumbar strain is remanded. Entitlement to a rating in excess of 10 percent for bilateral pes cavus and claw foot with hallux valgus of the great toe and first metatarsal hammertoes is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1975 to May 1978. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision that denied service connection for bilateral hearing loss, tinnitus, Hepatitis C, sciatica of the right and left lower extremities, and a psychiatric disability, and granted service connection for lumbar strain, rated 20 percent and for bilateral pes planus, rated 10 percent, each effective November 14, 2011. In September 2017 the Veteran filed a notice of disagreement (NOD) with a June 2017 rating decision that denied service connection for right and left ankle disabilities. In the NOD he did not designate whether he wanted the decision review officer (DRO) process or the traditional appeals process. Subsequently, the DRO provided notice to the Veteran and indicated that the claim would be resolved through the Post-Decision Review Process. Inasmuch as the DRO has responded to the Veteran’s NOD, and a statement of the case (SOC) would be premature given the DRO process, remand for issuance of a SOC at this time is not necessary. See Manlincon v. West, 12 Vet. App. 238 (1999). Entitlement to service connection for bilateral hearing loss is remanded. On August 2012 VA audiology examination, the C-file was not reviewed, and the examiner did not provide a nexus opinion because; in an October 2012 addendum the provider opined that the Veteran’s current bilateral hearing loss is unrelated to his service. It was noted that service entrance and separation audiograms were within normal limits, and that [during service] there was no puretone threshold shift in either ear at any frequency. He explained that the Institute of Medicine had found that hearing loss from noise injury occurs immediately after exposure, and that there was no scientific basis for concluding that permanent hearing loss directly attributable to noise exposure develops long after the exposure. He also noted that there was no objective evidence of noise injury in either ear [The Veteran’s MOS as an infantry fire crewman (mortarman) suggests exposure to noise in service]. Under governing caselaw, the absence of a hearing loss in service is not fatal to a claim of service connection for hearing loss (see Hensley v. Brown, 5 Vet. App. 155, 159 (1993)). Furthermore, an alternate likely etiology for the Veteran’s hearing loss was not provided. Another examination to obtain a fully adequate opinion in this matter is necessary. Entitlement to service connection for tinnitus is remanded. On August 2012 VA audiological examination, the Veteran reported bilateral recurrent tinnitus with an onset approximately 2-3 years prior to the examination. In the October 2012 addendum opinion, the examiner opined that there was no evidence that hearing loss or significant threshold changes occurred during military service and therefore, there was no basis on which to conclude that the Veteran’s claim for tinnitus was caused by noise exposure. Since tinnitus can be perceived through the senses, and is not necessarily tied to hearing loss, the opinion is inadequate. At the October 2016 Board hearing, the Veteran testified that he has had “ringing in his ears” since service and that it has continued since service. Another examination to obtain a fully adequate opinion in this matter is necessary. Entitlement to service connection for Hepatitis C is remanded. On April 2013 VA examination, the examiner noted that a July 1976 service treatment record (STR) notes that the Veteran had “hepatitis contact,” that the Veteran’s March 1978 separation service examination did not note viral hepatitis, and that there was a December 2007 diagnosis of hepatitis C. He opined that the hepatitis C was not due to military service and explained that he found no information in the Veteran’s file did not identify a risk factor for development of viral hepatitis. The opinion is inadequate for rating purposes because it is based on an incomplete record. On April 2013 examination, it was noted that the Veteran reported hospitalization for jaundice at Crozer Chester Medical Center in summer 1980; records of that hospitalization are not associated with the record. [A January 2018 response from Crozer Chester (now Crozer Keystone) to a February 2017 request for 1980 to 2017 records included only a July 2016 treatment record and did not indicate whether that was because it was the only record available; clarification is necessary]. Additionally, an October 1987 Coatesville VAMC treatment record (associated with the Veteran’s record subsequent to the examination) notes a diagnosis of hepatitis at Sacred Heart Hospital (Chester, PA) in June/July 1987. Records from Sacred Heart are not associated with the record, and have not been sought. Any available records of such hospitalization are pertinent evidence, and must be sought. An examination to secure an adequate medical opinion is necessary. Entitlement to service connection for sciatica of both lower extremities, to include as secondary to a service-connected low back disability is remanded. On August 2012 VA peripheral nerves examination, the examiner opined that incomplete mild sciatic neuropathy involving both lower extremities is at least as likely as not related to the Veteran’s service connected lower back disability. No rationale was provided. However, on August 2012 VA back examination, the examiner noted no symptoms or evidence of radiculopathy, no nerve root involvement, and no neurological abnormalities as it relates to lumbar spine evaluation (i.e., that there was no sciatica). On September 2016 VA back examination, mild right and left lower extremity radiculopathy with sciatic nerve involvement was noted; the provider did not indicate whether the sciatica is secondary to the service-connected low back disability. An examination to obtain a fully adequate clarifying medical opinion is necessary. Entitlement to service connection for a variously diagnosed psychiatric disability, to include anxiety, depression, and mood disorder is remanded. On August 2012 VA mental disorders examination, the provider offered an opinion that appears facially inconsistent: “the Veteran’s foot pain and back pain are contributing to the Veteran’s mood disorder; however foot and back pain alone without his negative beliefs and without psychosocial problems is as least likely as not resulting in his mood disorder”. The opinion begins by suggesting that the service connected foot and back disorders aggravate the psychiatric disability, then continues with a suggestion that the foot and back pain of itself causes a mood disorder. Clarification is necessary. Entitlement to a rating in excess of 20 percent for lumbar strain is remanded. Entitlement to a rating in excess of 10 percent for bilateral pes cavus and claw foot with hallux valgus of the great toe and first metatarsal hammertoes is remanded. At the October 2016 Board hearing the Veteran’s representative identified September 2016 VA back and foot examinations and indicated that Agency of Original Jurisdiction (AOJ) initial consideration of the reports of those examinations was not waived. Additional VA back and foot examinations were conducted in April 2017. Due process requires remand of these issues to afford the AOJ initial consideration. See 38 C.F.R. §§ 19.9 (a), 19.31. It also appears that the Veteran receives ongoing VA treatment for psychiatric problems, sciatica of bot lower extremities, lumbar strain, and bilateral pes cavus. The most recent treatment records in the record are from December 2017. Records of VA evaluations and treatment since may contain pertinent information, are constructively of record, and must be sought. The matters are REMANDED for the following: 1. Ask the Veteran to identify all providers of evaluations and treatment he has received for Hepatitis C, and to provide authorizations for VA to obtain all outstanding updated to the present, records of any such private evaluations or treatment, to specifically include records from Crozer Chester Medical Center (now Crozer Keystone) from March to September 1980, and Sacred Heart Hospital (Chester, PA) from June to August 1987. Secure for the record complete clinical records of the evaluations and treatment from all providers identified (i.e., any not already associated with the record). If any private records identified are not received pursuant to a request, so notify the Veteran, and advise him that ultimately it is his responsibility to ensure that private records are received. 2. Secure for the record all outstanding (and not already in the file) records of VA evaluations and treatment the Veteran has received for any psychiatric problems, sciatica of both lower extremities, lumbar strain and bilateral pes cavus. 3. Arrange for an audiological evaluation of the Veteran to ascertain the likely etiology of his hearing loss disability and tinnitus. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. The examiner should acknowledge that the Veteran’s occupation in service (as an infantry fire crewman (mortarman)) likely exposed him to hazardous levels of noise in service). On a review of the record, and examination of the Veteran, the examiner should: (a) Identify the likely etiology of the Veteran’s hearing loss disability. Specifically, is it at least as likely as not (i.e., a 50% or better probability) that such is related to the Veteran’s service (to include as due to his exposure to hazardous levels of noise therein)? (b) What is the likely etiology for the Veteran's tinnitus? Specifically, is it at least as likely as not (a 50% or better probability) that it had its onset in service or is otherwise related to service, to include as due to exposure to noise therein? The response should acknowledge the Veteran’s hearing testimony that his tinnitus began in service and has persisted since. If the Veteran’s hearing loss or tinnitus is determined to be unrelated to service, the provider should identify the etiology for the disabilities considered more likely (and explain why that is so). The examiner must include rationale with all opinions. 4. Arrange for the Veteran to be examined by an appropriate clinician to ascertain the likely etiology of his hepatitis C. His claims file (including all additional records received pursuant to the above development) must be reviewed by the examiner in conjunction with the opinion. The examiner should: (a) Identify the most likely etiology for the Veteran’s hepatitis C. Specifically, is it at least as likely as not (a 50% or greater probability) that such disability began in (or is otherwise related to) the Veteran’s military service, to include his exposure to risk factors for hepatitis C therein? The examiner must specifically address the July 1976 STR notation of “hepatitis contact.” The examiner must include rationale with all opinions. 5. Arrange for the Veteran to be examined by an appropriate clinician to determine the existence, nature, and likely etiology of a neurological disability (to include sciatica) of his lower extremities. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. Upon review of the record and interview and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Identify (by diagnosis) any (and each) lower extremity neurological disability found. If none is diagnosed, reconcile that conclusion with the notations of bilateral lower extremity radiculopathy with sciatic nerve involvement in the Veteran’s medical records. (b) Identify the likely etiology of each lower extremity neurological disability diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that such disability was either caused or aggravated by the Veteran’s service-connected low back disability? (c) If a neurological disability of the lower extremities is found to not have been caused, but to have been aggravated, by the low back disability, please identify the degree of impairment that is due to such aggravation. (d) If a neurological disability of the lower extremities is determined to not have been caused or aggravated by the Veteran’s service-connected low back disability, identify the etiological factor(s) for the disability considered more likely. 6. Arrange for the Veteran to be examined by an appropriate VA psychiatrist or psychologist to determine the nature and likely etiology of his psychiatric disability. The Veteran’s entire record must be reviewed by the examiner in conjunction with the examination. The examiner should: (a) Identify (by diagnosis) each psychiatric disability found. (b) Identify the likely etiology for each psychiatric disability diagnosed; specifically, is it at least as likely as not (a 50% or greater probability) that such is directly related to the Veteran’s service (was incurred therein) or was caused or aggravated (the opinion must specifically discuss the concept of aggravation) by his service-connected (back and bilateral pes cavus) disabilities? (c) If a diagnosed psychiatric disability is found to not have been incurred in service or caused by his service-connected disabilities, but to have been aggravated by such disabilities, specify, to the extent possible, the degree of severity of such disability that resulted from the aggravation (i.e., identify the baseline level of severity of the psychiatric disability before the aggravation occurred, and the level of severity of the psychiatric disability after aggravation was completed). The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data as appropriate. 7. Review the entire record (specifically including the report of the September 2016 and April 2017 VA spine and feet examinations), arrange for any further development deemed necessary, and readjudicate the claims on appeal. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel