Citation Nr: 19110885 Decision Date: 02/12/19 Archive Date: 02/12/19 DOCKET NO. 12-00 630 DATE: February 12, 2019 REMANDED Entitlement to service connection for a left shoulder disability, to include rotator cuff syndrome is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for a right foot disability, to include metatarsalgia, hallux valgus, and hammertoes is remanded. Entitlement to an extension of a temporary 100 percent rating based on surgical treatment necessitating convalescence is remanded. Entitlement to an initial disability rating greater than 10 percent for plantar wart of the right foot is remanded. Entitlement to an initial disability rating greater than 30 percent for atopic dermatitis (also claimed as hives) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Army from August 1986 to June 1992. The Veteran had a hearing before the undersigned in January 2016. A transcript of the hearing has been associated with the Veteran’s electronic claims file. These claims were previously before the Board in June 2016, at which time they were remanded for further development. 1. Entitlement to service connection for a left shoulder disability, to include rotator cuff syndrome is remanded. In its June 2016 decision, the Board found the September 2011 VA examination inadequate in regard to the Veteran’s claimed left shoulder disability and remanded the claim for a new examination. The Veteran underwent VA examination in November 2016 at which time he was diagnosed with a left rotator cuff tear and degenerative arthritis of both shoulders. The examiner opined that the Veteran’s left shoulder condition was less likely than not incurred in or caused by service. The examiner noted that the Veteran was diagnosed with hyperextension and tendonitis of the left shoulder following a football injury in 1989. He stated that these conditions were self-limiting diagnoses and that there could have been several other occurrences to the left shoulder from 1989 to 2012 when the patient was diagnosed with a tendon tear. The Board finds the November 2016 VA examination inadequate for the purpose of adjudicating the Veteran’s service connection claim. The examiner stated that there “could have been” other injuries to the Veteran’s left shoulder but did not provide any explanation for this conclusion. Further, instead of providing detailed, well-reasoned medical findings, the examiner essentially stated a conclusion without providing a rationale to support it. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (“the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion”). Additionally, the examiner failed to offer an opinion as to whether the Veteran’s diagnosed degenerative arthritis of the left shoulder was incurred in or otherwise caused by his active duty service. Therefore, remand is necessary to afford the Veteran new VA examinations. 2. Entitlement to service connection for a bilateral hearing loss disability is remanded. The Veteran contends that he has a bilateral hearing loss disability as a result of his military service. As noted in the June 2016 Board decision, the Veteran underwent VA examination in March 2011 where he reported noise from weapons qualification during basic training. Upon examination, the examiner concluded that because the only audiogram of record was from the time of his entrance into service that it was impossible to determine whether the Veteran incurred noise-induced hearing loss in the left ear without resorting to mere speculation. Further, during the January 2016 hearing, the Veteran described in-service exposure to engine noise to airplanes. The Board concluded that a remand to obtain a medical opinion with regard to in-service noise exposure and bilateral hearing loss was warranted. The Veteran underwent VA examination in January 2018. Upon examination, the examiner determined that the Veteran’s test results were not valid for rating purposes and stated that she could not provide an opinion as to etiology of any left ear hearing loss disability. She noted that the Veteran’s thresholds for the left ear were considered invalid due to multiple inconsistent responses and significant variability (ranging from 10-40 decibels at the same frequency.) She also noted that speech recognition scores were invalid due to multiple inconsistent responses. She stated that malingering was suspected. In August 2018 correspondence, the Veteran’s representative stated that, at minimum, a new examination was appropriate to again evaluate the issue of medical nexus. As the Board cannot determine whether the Veteran has bilateral hearing loss without the diagnostic testing and opinion of a medical doctor, the Veteran should be afforded the opportunity to attend another VA examination and instructed as to the importance of adhering to examiner’s instructions. 3. Entitlement to service connection for a right foot disability, to include metatarsalgia, hallux valgus, and hammertoes is remanded. 4. Entitlement to an extension of a temporary 100 percent rating based on surgical treatment necessitating convalescence is remanded. 5. Entitlement to an initial rating greater than 10 percent for plantar wart of the right foot is remanded. In its June 2016 decision, the Board concluded that a VA examination was necessary to clarify the timing of onset of the Veteran’s current right foot disabilities. In its remand directives, the Board invited the examiner to consider the May 2015 opinion of the Veteran’s private treating podiatrist suggesting an association between the Veteran’s post-service treatment for his right foot and his service, as well as the Veteran’s assertions that the hammertoe, metatarsalgia and hallux valgus were present during service and the plantar wart was a manifestation of the disabilities, rather than the plantar wart causing the other problems as considered by the May 2015 VA examiner. Further, the Board noted that the Veteran contended that the plantar wart diagnosis in service was a mistake and that he actually had a pressure callous due to his metatarsalgia and hammertoes that became infected. The Veteran underwent VA examination in November 2016. The examiner stated that the Veteran was diagnosed in 1990 with a plantar abcess, that the area was lanced and drained, and that the Veteran was given antibiotics, which was the treatment for an abcess. He stated that he did not see any mention of any further foot conditions, diagnosis, or treatment during service and as such, opined that it was less likely than not that the Veteran’s current foot conditions were incurred in or caused by service. The Board finds the November 2016 VA examination inadequate for the purpose of adjudicating the Veteran’s claims. Specifically, the examiner failed to address the May 2015 private medical opinion and the Veteran’s assertions. Further, the examiner did not clarify the timing of onset of the Veteran’s current right foot disabilities as requested by the Board in its June 2016 decision. Once VA undertakes an examination, an adequate one must be produced. Barr v. Nicholson, 21 Vet. App. 303 (2007). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). In August 2018 correspondence, the Veteran’s representative asserted that the May 2015 private medical opinion by Dr. M.Q. should be adopted and service connection be granted for right third plantarflexed metatarsal with hammertoe deformity, as a condition caused or aggravated by service. However, while positive in supporting the Veteran’s assertions, the May 2015 private medical opinion is speculative in nature and is not adequate for the purpose of adjudicating the Veteran’s claims. Based on the foregoing, this matter must be remanded for a new VA examination. As to the claim for extension for a temporary total disability rating, this claim is dependent on the Veteran’s claimed right foot disabilities being service-connected, as the incapacity was the result of his right foot disabilities that to this point have not been connected to service. As such, the claim for extension of the temporary total disability rating is inextricably intertwined with the right foot claim and cannot be adjudicated until resolution of the underlying right foot claim. Similarly, the Veteran’s claim for an increased rating for right foot plantar wart is potentially impacted by the findings on the examination of the right foot. 6. Entitlement to an initial rating greater than 30 percent for atopic dermatitis (also claimed as hives) is remanded. In its June 2016 decision, the Board concluded that a new examination was necessary regarding the Veteran’s atopic dermatitis based upon the Veteran’s claims of the disability worsening since his last VA examination. Further, the Board directed the examiner to consider that the Veteran’s skin claim originally was one for hives and his representative had argued that the current rating did not take into account the Veteran’s problems due to hives. The Veteran underwent VA examination in November 2016. Upon examination the examiner opined that the Veteran “does not have hives.” However, the examiner provided no rationale to support this conclusion. Additionally, the examiner did not address whether the Veteran did not have hives at the time of examination or whether, historically, the Veteran did not experience hives. Additionally, in January 2019, the Veteran’s representative submitted VA treatment records indicating worsening of the Veteran’s symptoms that included the spread of his skin to his chest and genitals, in addition to the face, shoulders, back, buttocks, and legs, as previously documented. Based on the foregoing, a new examination is warranted. 7. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issues addressed above could significantly impact a decision on the issues of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim is required. The matters are REMANDED for the following action: 1. Associate with the electronic claims file all VA treatment records from May 2018 to the present. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left shoulder disability, to include rotator cuff syndrome, is at least as likely as not related to not related to an in-service injury, event, or disease. (a.) The examiner is asked to consider the in-service treatment records from 1989 documenting left shoulder complaints. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hearing loss disability. The examiner is requested to obtain a complete history from the Veteran regarding his hearing difficulties and conduct an examination, with any indicated diagnostic testing. After completing the foregoing, the examiner is asked to provide an opinion as to whether it is at least as likely as not that any currently diagnosed right and/or left ear hearing loss disability was incurred in or is otherwise related to the Veteran’s service. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists between service and the currently diagnosed hearing disability. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any of his claimed right foot disabilities, to include metatarsalgia, hallux valgus, and hammertoes. The examiner is requested to obtain a complete history from the Veteran and conduct an examination, with any indicated diagnostic testing. After completing the foregoing, the examiner is asked to provide an opinion as to whether it is at least as likely as not that any currently diagnosed right foot disability (other than plantar warts) was incurred in or is otherwise related to the Veteran’s service. (a) The examiner is asked to consider the May 2015 opinion of the Veteran’s private treating podiatrist suggesting an association between the Veteran’s post-service treatment for his right foot and his service. Note that the Veteran contends that the hammertoe, metatarsalgia and hallux valgus were present during service and the plantar wart was a manifestation of the disabilities, rather than the plantar wart causing the other problems as considered by the May 2015 VA examiner. The Veteran contends that the plantar wart diagnosis in service was a mistake and that he actually had a pressure callous due to his metatarsalgia and hammertoes that became infected. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. Schedule the Veteran for appropriate VA examination, to include a complete physical examination, in order to determine the current severity of his service-connected atopic dermatitis disability. All tests deemed necessary should be conducted, and all clinical findings should be reported in detail. In addition, the examiner is requested to consider the Veteran’s claim for hives and, should any hives be found that are separate and distinct from the service-connected atopic dermatitis, provide an opinion (with sufficient rationale) as to whether the diagnosed hives were (a) incurred in or are otherwise related to service or were (b) caused or (c) aggravated by a service-connected disability. 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. BETHANY L. BUCK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel