Citation Nr: 21001620 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 15-34 930 DATE: January 11, 2021 ORDER Service connection for headaches, to include migraines, is denied. Service connection for vertigo or a balance disorder is denied. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for tinnitus is remanded. Service connection for cold injury residuals is remanded. Service connection for Raynaud’s syndrome is remanded. Service connection for peripheral neuropathy of the feet is remanded. Service connection for bilateral flat foot is remanded. Service connection for a back disability, to include lumbar strain or degenerative disc disease, is remanded. FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy, and he has not asserted that his claimed injuries or symptoms had their onset during a combat episode. 2. The Veteran was involved in the completion of his March 1967 separation examination and Report of Medical History, and they are considered accurate. 3. The Veteran’s chronic headaches or migraine disability did not have an onset during service, organic disease of the nervous system did not manifest during service or within one year after service; and a current disability is not otherwise related to in-service injury or disease. 4. Any current vertigo or balance disorder did not have an onset during service, organic disease of the nervous system did not manifest during service or within one year after service; and a current disability is not otherwise related to in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches, to include migraines, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for vertigo or a balance disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from June 1964 to March 1967, including in the Republic of Vietnam from January 1966 to March 1967. This appeal came before the Board of Veterans’ Appeals (Board) on appeal from January 2013 and May 2016 rating decisions. In a September 2018 decision, the Board previously denied the issues listed on the first page of this decision, except for service connection for peripheral neuropathy of the feet. The Veteran appealed, pro se, to the U.S. Court of Appeals for Veterans Claims. In a January 2020 Memorandum Decision, the Court vacated and remanded the Board’s decision for additional consideration. In addition to errors as to the other eight issues noted below, the Court found that the Board failed to adjudicate the appealed denial of peripheral neuropathy affecting the feet, as separate from bilateral flat foot. The Veteran’s June 2011 claim was for a “foot disability” and “peripheral neuropathy,” and he appealed from denials, but the Board only addressed a foot condition of flat feet. Therefore, the separate issue of service connection for peripheral neuropathy of the feet is added as an issue under the Board’s current jurisdiction. After the last adjudications by the agency of original jurisdiction (AOJ) in a June 2017 statement of the case (SOC) for the back issue and an August 2015 SOC for the other issues, and again after the September 2018 Board decision that has been vacated, additional VA treatment records were added to the Veteran’s claims file. However, those records are essentially duplicative of the prior evidence, as the records relevant to a current disability were already of record, and they do not tend to prove or disprove an in-service injury or nexus. Therefore, the additional records are not relevant to the appeal and do not require a waiver of AOJ initial review. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. Generally, service connection requires three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Organic diseases of the nervous system, which VA considers to include migraines, are considered chronic diseases that will be presumed related to service if they were noted or diagnosed as chronic in service; or if they manifested to a compensable degree within one year after active duty discharge; or if chronicity or continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a)(3). Additionally, the Veteran is presumed to have been exposed to herbicide agents, including Agent Orange, during his service in Vietnam. 38 C.F.R. § 3.307(a)(6). Peripheral neuropathy will be presumed related to such exposure if the condition manifested to a degree of 10 percent or more within one year after the last exposure to herbicide agents. 38 C.F.R. § 3.307(a)(6)(ii); 38 C.F.R. § 3.309(e). Secondary service connection will be granted if the evidence demonstrates that a current disability is proximately due to or the result of, or is aggravated beyond its natural progression, by service-connected disability. 38 C.F.R. § 3.310. In adjudicating such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Generally Applicable Matters Applicable to all claims, two memoranda in December 2012 note that medical records pertaining to the Veteran’s Social Security Administration (SSA) benefits do not exist and his SSA benefits are for age only, not disability. In March 2016, the VA facility Battle Creek responded that there were no existing records from December 1967 to July 2001, and no indication of treatment prior to July 2011. There is no suggestion of outstanding records except as noted in the remand. The January 2020 Memorandum Decision found that the Board previously failed to make a finding of fact as to the Veteran’s assertion that his March 1967 separation examination was completed by someone else and was inaccurate. The Board finds that the Veteran was involved in the completion of his March 1967 separation examination and Report of Medical History, and they are considered accurate. In his October 2013 NOD, which he resubmitted in September 2016, the Veteran acknowledged the he signed the Report of Medical History and a medical examiner signed the Report of Medical Examination. He asserted that the notation that he had no health problems was incorrect because on the date of separation his afflictions seemed minor, he wasn’t under the care of a physician and he had no prescribed medications. He explained that he had been self-medicating what appeared to be noise-induced headaches that had subsided somewhat by removal from a noisy environment. He had been advised by a flight surgeon that his balance problem would resolve itself. His previous injuries and frequent sore throat were not a problem at the time. He had no pain in his swollen fingers, and anatomical changes to his ears from his cold injury actually resulted in improved physical appearance. For these reasons, the Veteran gave a self-assessment and downgraded his health status from “excellent” at enlistment to “good” at separation. Despite this explanation, the Veteran asserts that it is “obvious” that some of the responses on the Report of Medical History were completed by a clinician in the Veteran’s absence with no knowledge or review of his medical history or treatment records, and that this should result in “wholesale inaccuracy” of the medical history portion. The Veteran asserts that “it appears that the clinical evaluation was completed first” and the data therein provided the basis for completing the medical history portion. The Veteran notes that the Report of Medical History states that he had no broken bones and no ENT trouble, but an accompanying document noted a broken leg and that response was altered, and he had multiple ENT visits for the throat, tonsils, and teeth. He stated that he did not remember who actually completed the Report of Medical History, but he believed the entries were not accurate. In his September 2015 VA Form 9, the Veteran made similar assertions and added that the use of both check marks and “X” marks in the Report of Medical History shows that more than one person was involved in its completion. A review of the March 1967 Report of Medical History form reflects that on the first page “no” is marked for a history of broken bones, and then on the second page “yes” is marked for whether there was treatment in the past 5 years, with “no” crossed out, and a notation that the Veteran stated that he had a broken left ankle in 1963, prior to service. It is true that a portion of this form was completed by a medical examiner, and the second page includes both the Veteran’s written name and signature and the medical examiner’s typed name and signature after the section for the “physician’s summary and elaboration of all pertinent data.” It is also true that “no” is marked for ENT problems on the first page of this report. However, the Veteran explained in 2013 that he considered his problems minor at that time and essentially did not report them. The Veteran’s assertion that the uses of different types of marks on the form means he did not complete it has little value. The first page of the Report of Medical History uses all check marks, and the second page uses all “X” marks for a different format of questions. If the Report of Medical History was inaccurate, it was due to him choosing not to report symptoms or conditions at that time. The Veteran’s explanations for his claim make clear that the forms accurately reflect what he reported at that time he was examined. Additionally, his signature on the form in 1967 shows that he had the opportunity to review the entries to the extent that he did not physically input the information. These separation reports are considered along with other evidence. As a final generally applicable matter, the 2020 Memorandum Decision found that the Board previously failed to make a finding of fact of whether the Veteran had combat service to entitle him to certain lessened evidentiary standards. Under the combat presumption, where the evidence shows that a veteran engaged in combat with the enemy, his or her lay reports will be sufficient to establish the occurrence of an event or injury during combat as long as such reports are consistent with the circumstances, conditions, or hardships of such service. This is true even if there is no official record of the reported incident, unless there is clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). This presumption also extends to a combat veteran’s reports of experiencing a permanent disability beginning at the time of injury during combat. Reeves v Shinseki, 682 F.3d 988, 998-1000 (Fed. Cir. 2012). However, “[e]ven when the statutory combat presumption applies, a veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty.” Id. at 999 n. 9. As such, the evidence must show that the “disability he incurred in service was a chronic condition that persisted in the years following his active duty.” Id. at 1000. The Board finds that the Veteran did not engage in combat with the enemy, and the combat presumption does not apply. A December 1965 service examination for reassignment notes that he was qualified for “combat duty.” However, this is not the same as actually engaging in combat with the enemy, either by the Veteran himself or his assigned unit to presume his participation in such combat. His DD Form 214 and other service personnel records do not reflect medals, decorations, or citations for engaging in combat, and his “combat record” is blank. His records reflect that he was stationed in Vietnam from January 1966 to March 1967 as a senior message clerk with the HHC 17th Aviation Group 1st Aviation Brigade, including at Long Van air base in Nha Trang in November 1966 and departure from that base in March 1967. His primary military specialty was lineman. The Veteran contends that the combat presumption is triggered because his unit responded to a combat enemy or “sapper” attack on the air base at Nha Trang, Vietnam, on February 15, 1967. He states that he was awakened in the middle of the night by explosions at the air strip two blocks away and they searched the perimeter for infiltrators. The Veteran also states that he was subject to three roadside ambush attacks from Viet Cong (VC) on Highway 1 between air bases at Nha Trang and Cam Ranh Bay, as well as and a rocket attack on Camp Holloway in Pleiku, while installing communications between headquarters. See, e.g., November 2013 and June 2015 correspondences; September 2015 VA Form 9. In November 2013, the Veteran submitted a partial map printout of where he served in Vietnam and photographs of mountains in Vietnam. He also submitted excerpts from several documents that he asserts show that VC headquarters were in the mountains west of Nha Trang, a VC Sapper Company was operating out of those mountains and responsible for a February 15, 1967 attack on Long Van air base, and VC were under orders to attack Highway 1 and there were ambushes on Highway 1 and the roads from Nha Trang to Cam Ranh during his period of service. These documents note that Viet Cong operated in Pleiku province in 1966 and 1967, with heavy combat in 1967, and that a small unit had a base of operations around Nha Trang city with certain specific targets, but Highway 1 or roads between Naha Trang and Cam Ranh were not specified. The Veteran also submitted what appear to be official documents dated in 1967 from the United States Military Assistance Command, Vietnam (MACV) stating that they were translations of enemy documents concerning the situation of Viet Cong (VC) and Allied Forces during the first half of 1965 and the first half of 1966. The Veteran’s service in Vietnam began in January 1966. These documents note enemy ambushes, raids, etc. but they do not specify the locations or dates. Therefore, these documents do not establish that the Veteran engaged in combat with the enemy. Moreover, even if combat were established, the Veteran primarily asserts that his injuries and symptoms first occurred prior to his Vietnam service, or that they are related to non-combat circumstances. See, e.g., June 2011 claim and statement, October 2013 NOD (resubmitted in September 2016), September 2015 VA Form 9. He has identified symptoms beginning while he was stateside in the U.S. for basic training in 1964 (noise exposure, hearing loss and tinnitus); while on TDY in Alaska in 1965 (noise exposure from flight engine noise, ear pain and headache after landing in Alaska, and cold injury residuals, to include peripheral neuropathy, Raynaud’s syndrome, flat feet, toenail fungus); and while in Korea in 1965 (numbness or peripheral neuropathy, flat feet, and back pain related to flat feet). In a November 2013 correspondence, the Veteran asserted that anything that happened in 1966 or 1967 should be presumed combat-related, specifying swollen fingers, tinnitus, headaches, and a balance disorder began during that period. However, he does not assert that his symptoms or conditions are actually related to any combat episode, which is the basis for the combat presumption. Instead, the Veteran asserts that his headaches began when he had daily duties in a noisy environment in the communications center in Vietnam, and his headaches were less frequent after he was removed from the noisy environment. He further states that he noticed vertigo or balance problems after being discharged from the Long Van air base field hospital in October 1966 for treatment for strep throat, tonsillitis or a peritonsillar abscess, and he again noticed nausea with any spinning activity at a carnival after service in July 1967. Thus, the combat presumption does not apply. 1. Service connection for headaches, to include migraines The Veteran contends that service connection is warranted for his chronic or ongoing headaches since service. See, e.g., June 2011 claim, October 2013 NOD. As explained below, the Veteran’s chronic headaches or migraine disability did not have an onset during service; organic disease of the nervous system did not manifest to a compensable degree during service or within one year after service; and his current disability is not otherwise related to in-service injury or disease. A current disability is established. The Veteran is competent to report that he currently experiences headaches, which he reported for his claim and VA treatment as noted below. The Veteran is not competent to diagnose the particular type of headache, to include whether they are migraine-type headaches. This is a medically complex question that requires knowledge of the potentially involved neurologic system in the body, as well as interpretation of the Veteran’s medical history and any required testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The 2020 Memorandum Decision found that the Board previously failed to address whether a VA examination should have been provided to determine the nature and etiology of the Veteran’s claimed headaches. The Veteran is not competent to provide an opinion as to cause of his current disability, as this is also a medically complex question under the facts of this case. Id. As discussed below, there was no chronic condition during service or continuity of symptomatology, and there is no medical evidence suggesting that current headaches may be related to service. Instead, there is a suggestion that they may be due to an eye disability and the need for glasses. The Veteran’s broad conclusory statements as to the nature and cause of his claimed current disability is insufficient to trigger the need for a VA examination or medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Waters v. Shinseki, 601 F.3d 1274, 1276-77 (Fed. Cir. 2010). The Veteran is competent to report experiencing noticeable headache symptoms such as pain during service. However, the Board finds him not credible as to having chronic or frequently recurring headaches continuously since service. As noted above, the Veteran reports that he had headaches for three days after a loud flight to Alaska in early 1965. He states that he began to have regular daily headaches in Vietnam in July or August 1966 when he had daily duties in a noisy environment in the communications center with high-pitched noises from teletype machines. He stated that he would take APC tablets or Darvon that he got from the group flight surgeon, although he states that he did not seek treatment. The Veteran reports that his headaches subsided somewhat or became less frequent after he was removed from the noisy environment. However, he states that he continued to have frequently recurring headaches continually since service, and he needed increasing dosages of ibuprofen or Tylenol. See, e.g., June 2011 claim, October 2013 NOD. The Veteran’s service treatment records are silent for treatment or complaints of headaches or migraine symptoms in service. At his March 1967 separation examination, the Veteran specifically denied “frequent or severe headache.” This suggests that he did not have ongoing or frequent headaches at that time. As explained in the generally applicable analysis above, the Board rejects the Veteran’s assertion that his separation examination and Report of Medical History were inaccurate or that he was not involved the in the completion of the reports. The Board also finds that the combat presumption does not apply. Additionally, the Veteran did not seek treatment for headaches until 2011. The lack of treatment or corroborating medical evidence for many years after service may be considered as one of several factors in determining whether a disability was incurred during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). A July 2011 VA treatment record noted that the Veteran presented to establish care, and he had a private primary care provider but had not been seen with the past year. The Veteran stated that his last eye examination was when he was discharged from service in 1967, and he had chronic frontal headaches 3 to 4 times per week, which he had for most of his life. The provider assessed headaches, recommended to start with an acuity check, and referred the Veteran for an eye consult. A September 2011 eye consult noted that the Veteran had trouble with near vision but did not wear glasses. The assessment was refractive error with presbyopia and vitreous floaters bilaterally, and the plan was to order glasses and recommend full-time wear. During a November 2012 Agent Orange Registry examination, the Veteran reported chronic headaches but stated that his headaches were occasional. The timing of this report suggests that his headaches improved once he began using prescribed glasses. The Veteran again reported headaches in January 2014. Considering all of the above evidence, the Board finds that ongoing headache symptoms did not start until more than one year after service. Thus, any organic disease of the nervous system did not manifest to a compensable degree within one year after service to apply the chronic disease presumption. Additionally, the medical evidence suggests that the chronic headaches are due to refractive error that may have been present for many years, with the last eye examination being at separation from service in 1967. In his June 1964 enlistment examination, the Veteran reported wearing glasses. Refractive error itself is not subject to service connection, and there is no suggestion that refractive error was worsened by a superimposed injury or disease in service to result in the Veteran’s headaches after service. See 38 C.F.R. § 3.303(c); VAOPGCPREC 82-90 (July 18, 1990); Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004). In summary, the preponderance of the evidence is against service connection for chronic headaches or migraines under any reasonably raised theory. There is no reasonable doubt to resolve in the Veteran’s favor, and the appeal is denied. 2. Service connection for vertigo or a balance disorder The Veteran contends that he currently has vertigo or a balance disorder that began in October 1966 when he was hospitalized for strep throat, tonsillitis, or a peritonsillar abscess at a field hospital at Long Van Air Base in Vietnam. He states that he had balance problems after being discharged from the hospital, which he was told would be temporary, but he continued to have problems with nausea with spinning activities such as carnival rides and had to give up athletic activities. The Veteran stated that he first realized he had vertigo in July 1967, within one year after service discharge, when he had a spinning head and nausea for 30 minutes after riding a carnival ride. See, e.g., June 2011 claim, October 2013 NOD. As explained below, any current vertigo or balance problems did not have an onset the Veteran’s during service; organic disease of the nervous system did not manifest to a compensable degree during service or within one year after service; and a current disability is not otherwise related to in-service injury or disease. It is unclear whether there is a current disability or diagnosis of vertigo or another balance disorder. An August 2010 private ear-nose-throat (ENT) record or billing code sheet appeared to reflect vertigo unspecified, imbalance, and/or eustachian tube dysfunction. In his October 2013 NOD, the Veteran stated that the ENT specialist suggested that he attend a balance clinic for ongoing vertigo or imbalance problems. He also stated that about the same time he saw the ENT specialist in 2010, he was sent to a heart clinic for dizzy spells and EKG results were negative. A November 2012 VA audiology consult noted that the Veteran reported “vertigo” of getting queasy when he rides an elevator, but that there was no “true vertigo.” A March 2015 VA physical therapy record noted that the Veteran had preexisting balance problems, but he was not sure what caused the problems. However, it is unnecessary to clarify the nature of any current diagnosis because the preponderance of the evidence is against finding an in-service injury or disease, or chronic or ongoing symptoms since service, and there is no other suggestion of a nexus to service sufficient to warrant a VA examination or medical opinion. The 2020 Memorandum Decision found that the Board previously failed to address whether a VA examination should have been provided to determine the nature and etiology of the Veteran’s claimed vertigo. The Veteran is not competent to provide an opinion as to a current diagnosis or the cause of his claimed disability. This is a medically complex question that requires knowledge of the causes of balance problems and potentially involved neurologic or other systems in the body, as well as interpretation of the Veteran’s medical history and any required testing. Jandreau, 492 F.3d at 1377. As discussed below, there was no chronic condition during service or continuity of symptomatology, and there is no medical evidence suggesting that a current balance disorder or vertigo may be related to service, to include the reported symptoms noticed in 1966 and within one year after service in 1967. The Veteran’s broad conclusory statements as to the nature and cause of his claimed disability is insufficient to trigger the need for a VA examination or medical opinion. See McLendon, 20 Vet. App. at 81; Waters, 601 F.3d at 1276-77. The Veteran is competent to report experiencing noticeable symptoms of vertigo or a balance disorder, such as nausea or difficulty balancing, during service. However, the Board finds him not credible as to having any such symptoms on a chronic or frequently recurring basis continuously since service. Specifically, the Veteran’s service treatment records are silent for treatment or complaints of vertigo, dizziness, or balance issues in service. The records include a notation of admission and treatment in October 1966 for peritonsillar abscess that improved. Although he has asserted that he had an episode of balance problems in October 1966, at his March 1967 separation examination, the Veteran specifically denied “dizziness or fainting spells.” This suggests that he did not have ongoing problems with balance at that time. As explained in the generally applicable analysis above, the Board rejects the Veteran’s assertion that his separation examination and Report of Medical History were inaccurate or that he was not involved the in the completion of the reports. The Board also finds that the combat presumption does not apply to his claims. Although the Veteran reported being treated for hepatitis and back pain after service in December 1967, he has not reported any treatment or diagnosis near service for vertigo or nausea symptoms. Additionally, the Veteran did not seek treatment for vertigo or balance problems until 2010. The lack of treatment or corroborating medical evidence for many years after service may be considered as one of several factors in determining whether a disability was incurred during service. See Davidson, 581 F.3d at 1316 ; Maxson, 230 F.3d at 1333. As summarized above, post-service treatment records noted problems when riding elevators that was not “true” vertigo, and unspecified balance difficulties, not nausea with spinning activities as the Veteran recalls noticing in July 1967. Considering all of the above evidence, the Board finds that any ongoing vertigo or balance disorder-type symptoms did not start until many years after service. Thus, any organic disease of the nervous system did not manifest to a compensable degree within one year after service to apply the chronic disease presumption. In summary, the preponderance of the evidence is against service connection for vertigo or a balance disorder under any reasonably raised theory. There is no reasonable doubt to resolve in the Veteran’s favor, and the appeal is denied. REASONS FOR REMAND 1. and 2. Service connection for hearing loss is remanded; service connection for tinnitus is remanded. A remand is necessary for an addendum opinion as to hearing loss and tinnitus. The Veteran contends that he has current hearing loss and tinnitus due to hazardous noise exposure during service. He asserts that he has had hearing loss and tinnitus ever since basic training in June 1964 and subsequent noise exposures in June 1965 and August or September 1966 (while in Vietnam), when they became permanent. See, e.g., June 2011 claim, October 2013 NOD (resubmitted in September 2016). A current disability is shown for bilateral sensorineural hearing loss and tinnitus. A December 2012 VA examination report showed a current hearing loss disability for VA purposes based on pure tones, per 38 C.F.R. § 3.385. The Veteran’s lay statements are competent and credible to establish a current tinnitus disability. The evidence also establishes an in-service injury of hazardous noise exposure. The Veteran reports such exposure from aircraft while flying between stations, weapons and grenades during training or alert drills, and radioteletype transmissions through duties as a lineman and in communications. He states that he was not provided hearing or ear protection during service. See, e.g., 2011 claim, 2013 NOD, November 2012 VA audiology consult, December 2012 VA examination. The Veteran is competent to report these types of exposure, and they are credible as consistent with his service as shown by his service records. Based on the below evidence, the Board finds the Veteran not credible as to having chronic or ongoing noticeable hearing loss or tinnitus during service or continuously since that time. Instead, his noticeable symptoms began after service. As explained in the generally applicable analysis above, the Board rejects the Veteran’s assertion that his separation examination and Report of Medical History were inaccurate or that he was not involved the in the completion of the reports. The Board also finds that the combat presumption does not apply to his claims. The Veteran’s service treatment records do not reflect any complaints, treatment, or diagnosis of hearing loss or tinnitus. A March 1967 separation examination report found clinically normal ears and pure tone thresholds from 0 to 5 decibels, which the 2012 VA examiner noted were entirely normal. In a Report of Medical History, the Veteran expressly denied hearing loss or ear, nose, and throat trouble. Private testing in August 2010, decades after service, is the first indication of diagnosed sensorineural hearing loss. He also reported tinnitus at that time. That audiogram and billing code sheet with the noted diagnoses are in the claims file. VA testing in a November 2012 audiology consult and a December 2012 examination for the Veteran’s claim also diagnosed sensorineural hearing loss and noted the report of tinnitus. The Veteran reported post-service noise exposure through hunting and lawn care equipment, but that he used hearing protection. In his October 2013 NOD (resubmitted in September 2016), the Veteran stated that he was sent to the private ear-nose-throat (ENT) specialist in August 2010 for complaints of vertigo or imbalance, and an audiology test was ordered that showed noise-induced high frequency hearing loss. The Veteran stated that he thought he had no hearing difficulties under normal circumstances, so he was surprised by those results, and this was the first time he was diagnosed with sensorineural hearing loss. Later in the 2013 NOD, as well as in a statement with his September 2015 VA Form 9, the Veteran stated that he had been on a “hearing conservation program” since leaving active duty or immediately after separation. Notably, the Veteran stated in this 2013 NOD that he believed his tinnitus occurred during combat, but he did not state that his hearing loss had an onset during combat. In his 2015 Form 9, the Veteran also asserted that the audiology examination at separation from service in 1967 did not test the ranges at which his disability occurs for the most part, essentially arguing that he did have hearing loss at that time even though it did not show on test results. However, these statements about hearing conservation and test results are inconsistent with the Veteran’s report that he had not noticed having hearing difficulties prior to 2010, as well as with his express denial of noticing any hearing loss in the 1967 Report of Medical History. The Board also finds the Veteran not credible as to having had chronic tinnitus during service or continuously since that time. In his June 2011 claim, the Veteran stated that he experienced episodes of tinnitus or ringing in the ears several times during service that subsided, or were temporary. These occurred after firing weapons or being exposed to loud explosions during basic training in 1964, after being on a 20-hour flight with loud engine noise to Alaska, and while firing weapons as part of an alert procedure in Korea in 1965. He also stated that starting in September 1966, or while he was in Vietnam, the tone or tinnitus was a minor nuisance, but it progressed over time to the current level of a loud roar. He asserted that his ringing in the ears became permanent after exposure to radio-teletype transmission noise. During a November 2012 VA audiology consult, the Veteran reported hitting his head on a steering wheel while “dodging a bullet” and that he broke the cartilage on his left ear and had constant tinnitus since this accident. In a November 2013 correspondence, the Veteran asserted that his tinnitus began during combat in Vietnam. In his September 2015 VA Form 9, he stated that he wasn’t “dodging a bullet” when he hit his ear on a steering wheel, but he was dodging the “sound” of a bullet. However, this report is inconsistent with his earlier report of having constant tinnitus after exposure to radio-teletype transmission noise, as well as with his express denial in his March 1967 separation examination of ear, nose, or throat trouble, which would reasonably include tinnitus as an ear complaint. Concerning a nexus, the December 2012 VA examiner opined that the current hearing loss disability was less likely than not attributable to in-service noise exposure. The examiner explained that damage from noise exposure is not delayed and would immediately be apparent upon audiological testing, noting that previously noise exposed ears are not more sensitive to future noise exposure and hearing loss due to noise exposure does not progress. Because the Veteran’s audiogram in March 1967 immediately prior to discharge was normal, this showed that he had recovered from any noise exposure without permanent loss. In his October 2013 NOD (resubmitted in September 2016), the Veteran asserted that the 2012 examiner improperly relied on audiology results during service that were dated prior to November 1, 1967, and were not converted from the ASA standard to the current ISO standard. However, because all of the in-service evaluations were prior to November 1, 1967, with the separation examination in March 1967, no conversion is needed to compare them to each other. The December 2012 VA examiner further opined that the Veteran’s current tinnitus was most likely associated with his hearing loss. The examiner explained that if the Veteran had acoustic trauma in the military causing tinnitus, the noise exposure would have also caused hearing loss, which was not shown at separation. The VA examiner relied, in part, on a 2005 Institute of Medicine (IOM) study, which is entitled “Noise and Military Service: Implications for Hearing Loss and Tinnitus,” finding that noise-induced hearing loss occurs immediately and does not have delayed onset. After the 2018 Board decision, the Court found that this study contains apparently contradictory findings as to delayed onset hearing loss and may be inadequate to support a negative nexus opinion. See McCray v. Wilkie, 31 Vet. App. 243 (2019). In particular, the Court directed attention to the fact that, although the IOM report states “based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely” that the onset of hearing loss begins years after noise exposure occurs (IOM report at 47), this statement does not reflect the full extent of the report’s pertinent findings. Although a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM Report found that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure.” (IOM report at 203-04). Therefore, the Court noted that the IOM report’s language may support a theory of service connection involving delayed onset of a Veteran’s perception of hearing loss such that a VA examiner’s citation of the report should contemplate to all of the pertinent aspects of its findings. Thus, an addendum opinion should be obtained. Additionally, the 2020 Memorandum Decision found that the Board previously failed to address medical treatise evidence. In July 2011, the Veteran submitted medical articles concerning “petrified ear” and hearing loss. The 2012 VA examiner sufficiently addressed this article as applied to the Veteran’s case. However, in October 2013 and March 2016, the Veteran submitted a medical article from the internet concerning hearing loss and tinnitus entitled “Tinnitus with a Normal Audiogram: Physiological Evidence for Hidden Hearing Loss….” Medical articles should be considered by a medical professional in connection with the Veteran’s history, and this information should be addressed in the opinion. 3. 4., 5., and 6. Service connection for cold injury residuals; service connection for Raynaud's syndrome; service connection for peripheral neuropathy of the feet; and service connection for bilateral flat foot are remanded The Veteran believes that he has cold injury residuals affecting the hands, feet and ears, to include Raynaud’s syndrome and/or peripheral neuropathy of the feet, due to extreme cold exposure during temporary duty (TDY) in Alaska in February 1965. He also asserts that his peripheral neuropathy in the feet may be due to Agent Orange exposure during his subsequent service in Vietnam. He submitted these claims in June 2011. See, e.g., June 2010 cold injury protocol questionnaire responses; June 2011 claim and statement; December 2012 VA examination; October 2013 NOD (resubmitted in September 2016); November 2013 correspondence and attachments; September 2015 VA Form 9. The Veteran also asserted in his October 2013 NOD that his fallen arches (or flat feet) are a known sequela or residual of cold injury. However, he primarily asserted in his NOD, as well as in his June 2011 claim and statement, that his flat feet are due to badly swollen feet and sensory interruption in the toes while marching up Hill 651 in Korea in December 1965. Similarly, he stated that he first noticed peripheral neuropathy in both feet in December 1965 as the loss of sensation, although he was first diagnosed with peripheral neuropathy in 2012. The January 2020 Memorandum Decision found that the Board failed to make a finding of fact of whether the Veteran served on TDY in Fort Greely, Alaska. Resolving reasonable doubt in his favor, the Board finds that the Veteran did have TDY in Alaska in February 1965 and that he was exposed to extreme cold. The Veteran’s service treatment and personnel records do not document service in Alaska. They reflect assignments in Virginia from August 1964 to May 1965, Korea from May 1965 to January 1966, Vietnam from January 1966 to March 1967, a short period of TDY in Thailand in 1966, and other stateside locations. He did receive training for “winter driving hazards” and “blackout driving” though. Significantly, the Veteran submitted a news article from his hometown dated February 11, 1965, about “Men in Service” that references him by name and rank as being involved in Exercise Polar Strike in Alaska for a 14-day winter field training exercise. The article identified him as a lineman in Company A 69th Battalion out of Ft. Eustis, Virginia, as well as that he completed basic training in Kentucky. These identifications of his military occupational specialty, unit, and assignment in Virginia during that period are consistent with service records. In June 2011, the Veteran submitted a “Fact Sheet” from the Department of Defense, which was noted to be distributed to assist VA in healthcare determinations and as an update to an October 2002 publication of the fact sheet. This document noted that the U.S. Army Deseret Test Center was to conduct tests in a frigid environment, and one phase was in central Alaska near Fort Greely from January 8, 1965, to February 21, 1965 and included Army and Air Force personnel. The Veteran also submitted personal photographs that he states were developed in March 1965 and include his view from the military plane over Alaska and after landing at Fort Greely, tents he stayed in that are in the snow, and a photograph of himself standing near the mess hall in heavy winter gear. The photographs appear to be from the identified time period. The Veteran also submitted two messages from internet message boards dated in 2009 and 2011, which state that the individuals served in Operation Polar Strike and temperatures were negative 54 to negative 57 degrees. These notations are consistent with the Veteran’s assertions. Resolving reasonable doubt in the Veteran’s favor, the above evidence is sufficient to establish that he served in Exercise or Operation Polar Strike in Alaska in February 1965 and was exposed to extreme cold as he has reported for his claim. The Board next finds that the Veteran has current cold injury residuals. The December 2012 examiner opined that his identified symptoms were at least as likely as not due to cold injury, but did not specify a diagnosis, to include Raynaud’s syndrome or peripheral neuropathy. The Veteran described his cold exposure and injuries in Alaska in 1965. This examiner stated that it was an administration determination as to whether the cold injury occurred during service. An addendum medical opinion is needed because the specific diagnosis or diagnoses for the Veteran’s current cold injury residuals, to include peripheral neuropathy or Raynaud’s syndrome, as a result of the 1965 cold exposure is unclear. Additionally, an opinion should be obtained as to whether any current peripheral neuropathy in the feet is due to the Veteran’s herbicide agent exposure in Vietnam or strenuous marching conditions during service in Korea. At various times for his claim, the Veteran has reported that he lost all feeling in his ears, hands, and feet for several hours, and he developed blisters on his ears that healed after about three weeks, after the extreme cold exposure on February 8, 1965. He denies seeking treatment at the time, stating that he removed himself from duty and transferred to inside work on a switchboard. The Veteran reports noticing cold intolerance while in Korea in 1965, which prompted him to request transfer to Vietnam to be in a warmer climate. He continued to notice symptoms that he believes are related to the cold injury, including in 1966 and 1967. The Veteran denies any other cold injuries other than in Alaska in 1965. He also denies any post-service treatment for these symptoms except for toenail care in 2010. In a May 2012 statement for his claim, the Veteran indicated that his ankles, fingers, and hands appear pale with cold weather or changes in room temperature and that he has nail fungus on both feet. He also stated that new health issues that developed after he filed his claim in 2011 were stinging pain in both thumbs and some fingers of each hand, usually precipitated by a change in temperature. The Veteran also stated that in the fall of 2011 half of each foot became numb, whereas previously he only had loss of sensation in some toes. He believes all of these symptoms or conditions are related to his cold injury or Agent Orange exposure. During the December 2012 VA examination, the Veteran identified current symptoms of a stinging sensation in the fingers, pain in the hands and feet with exposure and pallor in the fingertips, that his fingers turn red while working in the kitchen, arthralgia or pain, cold sensitivity, color changes, numbness in both hands, numbness in the feet and toes, occasional crusty lesions on the pinnae (outer ear) and stinging when temperatures are below 40 degrees. X-rays in December 2012 for the feet showed osteoarthritis or degenerative arthritis, and for the left hand showed no osteoarthritis or osteoporosis or subarticular punched-out lesions. VA treatment records note similar reported symptoms and diagnoses of Raynaud’s syndrome or peripheral vasospasm and peripheral neuropathy, as well as onychomycosis and tinea pedis for the fungus on the nails or feet. An October 2012 record noted reports of possible poor circulation in the hands and feet during cold weather that the Veteran attributed to service, and that he was interested in the Agent Orange registry. Another October 2012 record noted peripheral vasospasms with complaints of the hands and feet getting cold and numb or changing colors when exposed to cold temperatures of less than 50 degrees. The Veteran was advised to follow up for Raynaud’s. A November 2012 Agent Registry examination noted that the Veteran reported a cold injury while in Alaska – “Raynaud’s like.” A July 2013 podiatry record noted some loss of sensation in the distal feet or toes that was a possible residual of frostbite, and the assessment was peripheral neuropathy and onychomycosis of the toenails. A November 2013 podiatry record noted the Veteran’s report of numbness in the toes and assessed peripheral neuropathy, onychomycosis, and tinea pedis. A March 2015 physical therapy record noted stinging and burning pain or neuropathy that worsened in cold weather and blanching of the skin in cold weather. An October 2010 private treatment from Dr. R noted pes planus valgo, or flat feet. This is sufficient to establish a current diagnosis of bilateral flat feet. Additionally, in June 2011, the Veteran identified treatment from Dr. R in 2010 for peripheral neuropathy and toenail fungus, but no such records were requested or submitted. Attempts should be made to obtain those records upon remand. The 2020 Memorandum Decision found that the Board previously failed to address medical treatise evidence. In October 2013 and March 2016, the Veteran submitted copies of medical text about freezing cold injuries and nonfreezing cold injuries, including “militarily relevant modes of freezing injury,” pathophysiological changes, diagnostic tools and sequelae of cold injury. For example, the article notes that cold injury can cause peripheral nerve injury. This evidence should be considered upon remand in clarifying the current diagnoses due to cold injury. 7. Service connection for a back disability is remanded There is a current back disability. VA treatment records reflect that an October 2012 x-ray showed degenerative disc disease in the Veteran’s lumbar spine. The Veteran contends, in part, that his current back disability was caused or aggravated by his bilateral flat feet. See, e.g., June 2011 claim and statement. Because the claim for service connection for bilateral flat feet is being remanded, this claim is also remanded as inextricably intertwined with that issue. Additionally, the Veteran stated that his private provider, Dr. R, told him in 2010 that his back pain is related to his flat feet or fallen arches. See, e.g., June 2011 claim and statement; October 2013 NOD. He submitted an authorization for release of records from this provider in June 2011, but no efforts were made to obtain those records. The Veteran submitted a copy of an October 2010 prescription noting pes planus, or flat foot, and prescribing in-shoe orthotics, but not full treatment records. There was no notation about back pain or the etiology of flat feet in the submitted record. Attempts should be made to obtain these records. VA treatment records in October 2012 and November 2012 noted that the Veteran attributed his back pain to flat feet, and he had orthotics in the past that helped with his back pain, but his orthotics had worn out. An opinion should be obtained as to whether the Veteran’s back disability is secondary to his bilateral flat feet. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to address whether the Veteran’s onset of hearing loss and tinnitus after service is due to 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 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. The examiner should respond to the following: (a.) Was the Veteran’s current hearing loss or tinnitus at least as likely as not incurred as a result of hazardous noise exposure during service? The examiner is advised that the Board finds the Veteran not credible with regard to having noticeable or diagnosed hearing loss or tinnitus continuously since service. Therefore, the examiner should address whether the delayed onset hearing loss or tinnitus is due to service. (b.) In responding, along with relevant lay and medical evidence, the examiner’s opinion rationale should reflect consideration of relevant medical literature, to include the medical articles about hearing loss and tinnitus submitted in October 2013 (VBMS Correspondence, received 10/25/2013, pages 1-9). If the examiner relies on the 2005 IOM report regarding delayed onset of noise-induced hearing loss, both the positive and negative findings in the report must be discussed. See McCray v. Wilkie, 31 Vet. App. 243 (2019). 2. Ask the Veteran to complete another VA Form 21-4142 for treatment from Dr. R in 2010, as reported for his claimed foot conditions and back pain related to the feet. Make reasonable requests for authorized records. 3. Thereafter, obtain a medical opinion from an appropriate clinician to address the nature and etiology of the Veteran’s claimed cold injury residuals, to include Raynaud’s syndrome, peripheral neuropathy, flat feet, and toenail fungus. If an in-person examination is not possible due to COVID-19, obtain medical opinions without a full examination, if medically appropriate. 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 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. The examiner should respond to the following: (a.) Identify the Veteran’s current diagnoses to account for his reported symptoms in the feet, hands, and ears that were noted in the December 2012 VA examination to be as likely as not due to the established cold exposure in Alaska in February 1965. In particular, state whether there is Raynaud’s syndrome or peripheral vasospasm, peripheral neuropathy, onychomycosis of the toenails or another current diagnosis related to cold injury. Also, state whether any diagnosis is NOT as likely as not due to cold injury in February 1965. In addition to relevant lay reports and medical records, the examiner’s opinion rationale should reflect consideration of relevant medical literature, to include text submitted in October 2013 concerning cold injury and residuals (VBMS Correspondence, received 10/25/13, pages 27-69). (b.) If it is not due to cold exposure, did peripheral neuropathy in the feet at least as likely as not manifest to a compensable degree, such as by mild incomplete paralysis of the affected nerve, by March 1968 (within one year after the last presumed herbicide agent exposure in Vietnam? (c.) If it is not due to cold exposure, was bilateral flat feet or peripheral neuropathy at least as likely as not incurred as a result of strenuous marching during service in Korea in December 1965? 4. After obtaining any authorized private records from Dr. R, obtain a medical opinion from an appropriate clinician to address whether the Veteran’s current back disability was at least as likely as not incurred or aggravated by his claimed flat feet. For this purpose, aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions, whether or not it was permanent. If an in-person examination is not possible due to COVID-19, obtain medical opinions from an appropriate clinician, if medically appropriate without a full examination. The examiner is asked to explain the reasons behind any opinions and conclusions expressed. 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 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. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.