Citation Nr: 19173466 Decision Date: 09/20/19 Archive Date: 09/19/19 DOCKET NO. 16-31 437 DATE: September 20, 2019 ORDER The petition to reopen the claim of entitlement to service connection for a lower back disorder is allowed. The appeal is granted to that extent only. The petition to reopen the claim of entitlement to service connection for a skin disorder on the feet is allowed. The appeal is granted to that extent only. The petition to reopen the claim of entitlement to service connection for a bilateral hearing loss disorder is allowed. The appeal is granted to that extent only. The petition to reopen the claim of entitlement to service connection for tinnitus is allowed. The appeal is granted to that extent only. REMANDED The claim of entitlement to service connection for a lower back disorder is remanded. The claim of entitlement to service connection for a skin disorder on the feet is remanded. The claim of entitlement to service connection for a bilateral hearing loss disorder is remanded. The claim of entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. In an unappealed August 2004 rating decision, claims of entitlement to service connection for bilateral hearing loss, tinnitus, lower back, and foot disorders were denied by a U. S. Department of Veterans Affairs (VA) Regional Office (RO). 2. Evidence received since August 2004 relates to unestablished facts necessary to substantiate the claims of entitlement to service connection for bilateral hearing loss, tinnitus, lower back, and foot disorders and raises a reasonable possibility of substantiating the claims. Since then, the Veteran has provided lay statements describing the ways in which he believes he incurred the disorders during service in the Republic of Vietnam amid hostile enemy activities. CONCLUSIONS OF LAW 1. The August 2004 rating decision that denied a claim of entitlement to service connection for a lower back disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2018). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a lower back disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The August 2004 rating decision that denied a claim of entitlement to service connection for a skin disorder on the feet is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2018). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for a skin disorder on the feet. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. The August 2004 rating decision that denied a claim of entitlement to service connection for a bilateral hearing loss disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2018). 6. New and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral hearing loss disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 7. The August 2004 rating decision that denied a claim of entitlement to service connection for tinnitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2018). 8. New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to December 1967. This matter comes to the Board on appeal of a March 2014 rating decision by a VA RO. In June 2019, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the record and has been reviewed. Claims to Reopen Service Connection As noted above, new and material evidence has been included in the claims file since the final August 2004 rating decision. As such, the petitions to reopen the claims of entitlement to service connection for bilateral hearing loss, tinnitus, lower back, and skin disorders are granted. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 20.302 (2018). REASONS FOR REMAND A remand is warranted for medical inquiry into the claims on appeal. The medical evidence establishes that the Veteran has current hearing loss, tinnitus, back problems, and skin problems on his feet. Further, the lay evidence of record establishes that he served in the Republic of Vietnam in the late 1960s and was exposed to combat conditions that affected his hearing, back, and skin. His lay assertions are corroborated, moreover, by the RO’s June 2016 grant of service connection for posttraumatic stress disorder based on documented combat conditions in Vietnam. He should be provided VA examinations into his claims. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i) (2018). The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the claims. Include in the claims file any outstanding VA treatment records, the most recent of which are dated in April 2016. All records/responses received must be associated with the electronic claims file. 2. Schedule an examination to determine the nature and etiology of any lower back disorder. After reviewing the claims file, interviewing the Veteran, and examining him, the examiner should answer the following questions: (a). What lower back disorder(s) does the Veteran have? (b). Is it at least as likely as not (i.e., probability of 50 percent or greater) that a lower back disorder had its onset during service or is related to a disease, event, or injury during service? In answering (b), discuss the Veteran’s lay assertions in the June 2019 hearing, wherein he described the way in which he injured his lower back during service, and has experienced symptoms since then. Also discuss the March 1967 service treatment record noting treatment for a back injury from lifting a heavy object. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. Please explain in detail any opinion provided. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Schedule an examination to determine the nature and etiology of any skin disorder on the feet. After reviewing the claims file, interviewing the Veteran, and examining him, the examiner should answer the following questions: (a). What skin disorder(s) on the feet has the Veteran had since filing his claim in March 2013? (b). Is it at least as likely as not (i.e., probability of 50 percent or greater) that a skin disorder on the feet had its onset during service or is related to a disease, event, or injury during service? In answering (b), discuss the Veteran’s lay assertions, to include during the June 2019 Board hearing, describing the way in which he believes that conditions in Vietnam caused “trench foot.” In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. Please explain in detail any opinion provided. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Schedule an examination to determine the nature and etiology of the Veteran’s bilateral hearing loss disorder. After reviewing the claims file, interviewing the Veteran, and examining him, the examiner should answer the following question: Is it at least as likely as not (i.e., probability of 50 percent or greater) that the documented bilateral hearing loss disorder had its onset during service or is related to a disease, event, or injury during service? In answering this question, discuss the Veteran’s lay assertions, to include during the June 2019 Board hearing, describing the way in which he believes that acoustic trauma in Vietnam led to hearing loss. Also discuss his statements that he has experienced symptoms since service. Note that, in the answer to this question, a finding should not be based solely upon the absence of evidence in STRs of a hearing loss disorder during service. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. Please explain in detail any opinion provided. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. Schedule an examination to determine the nature and etiology of the Veteran’s tinnitus. After reviewing the claims file, interviewing the Veteran, and examining him, the examiner should answer the following questions: (a). Is it at least as likely as not (i.e., probability of 50 percent or greater) that the documented tinnitus had its onset during service or is related to a disease, event, or injury during service? In answering (a), discuss the Veteran’s lay assertions, to include during the June 2019 Board hearing, describing the way in which he believes that acoustic trauma in Vietnam led to tinnitus. Also discuss his statements that he has experienced symptoms since service. Note that, in the answer to this question, a finding should not be based solely upon the absence of evidence in STRs of a hearing problem during service. (b). If the answer to (a) is negative, is it at least as likely as not that tinnitus is due to or caused by service-connected disability (such as hearing loss disability if ultimately found service connected, or PTSD, as suggested by another VA examiner)? (c). If the answers to (a) and (b) are negative, is it at least as likely as not that tinnitus has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability? In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. Please explain in detail any opinion provided. (Continued on the next page)   The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.