Citation Nr: 21065689 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-59 142 DATE: October 27, 2021 REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for a bilateral foot disability, to include pes planus, is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for asthma is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1983 to February 1986. The Veteran testified at a Board hearing at the local Regional Office before the undersigned Veterans Law Judge in July 2021. A transcript of the hearing has been associated with the claims file. Additional relevant evidence, including VA examinations and VA clinical records, have been associated with the record, but have not been considered by the agency of original jurisdiction (AOJ) with respect to these issues. Nevertheless, in light of the need to remand these matters for further development, there is no prejudice to the Veteran in issuing this decision as the AOJ will have the opportunity to consider these records on remand. Entitlement to service connection for hearing loss is remanded. The Veteran asserts that his current hearing loss is due to inservice noise exposure. Specifically, he reported that he was around generators and heavy vehicles. Importantly, the Veteran was noted to have bilateral hearing loss on his March 1982 enlistment physical examination. As hearing loss was noted upon entrance, the Veteran is not presumed to have been in sound condition with respect to this disability. See 38 U.S.C. § 1111. Nevertheless, service connection may be awarded for a pre-existing disability that was aggravated in service. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153 ; 38 C.F.R. § 3.306. Independent medical evidence is needed to support a finding that the pre-existing disorder increased in severity in service. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). The Veteran was a afforded a VA examination in May 2019. The examiner noted that the Veteran's entrance exam shows bilateral hearing loss, right ear worse. The Veteran's entrance exam says that he should be tested two more times and then H-1 is listed. The Veteran's entrance hearing test is March 1982. His active duty begins in February 1983. It stands to reason that he was tested two more times and that he could have been H-1. Nevertheless, the examiner did not offer an opinion as to whether the Veteran's preexisting hearing loss increased in severity, and whether any increase in severity was clearly and unmistakably due to its natural progress. As such, the Board finds that a VA examination with etiological opinion is necessary. At the Board hearing, the Veteran also reported that he failed a hearing test when he went to work for the police department a couple of years after service. As this hearing test is relevant to the current claim, the AOJ should take appropriate steps, including requesting information from the Veteran, to obtain this record. Entitlement to service connection for a bilateral foot disability, to include pes planus, is remanded. The Veteran is also seeking service connection for a bilateral foot disorder. The Veteran has reported that he began experiencing foot problems in service that have continued to the present. In support of his claim, he submitted a March 2019 statement from a fellow service member who witnessed the Veteran stepping into a hole and injuring his left foot. Importantly, the Veteran was noted to have mild flat feet on his March 1982 enlistment physical examination. Therefore, he is not presumed sound as to that disability and thus, he must show that his preexisting disorder was permanently aggravated by his military service. The Veteran was afforded a VA examination in November 2016. The examiner diagnosed flat foot, hammer toes and hallux valgus. The examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner rationalized that review of service treatment records revealed entrance examination dated in March 1982 documented mild asymptomatic flat feet. Remainder of service treatment records are silent for a condition affecting either foot. The Veteran was not seen for a foot condition after his service until 2011. Therefore, due to the lack of continuity of care, the examiner was unable to render an opinion regarding the service aggravating the Veteran's foot condition without resorting to mere speculation. The Court has held that, in general, it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). Before the Board can rely on an examiner's conclusion that an opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Id at 390. In the instant case, the VA examiner did not offer a clear rationale for his inability to provide an opinion. Moreover, the examiner did not have the opportunity to consider the lay statement from the fellow service member indicating an in-service injury. As such, this examination is inadequate. Further, in support of his claim, the Veteran submitted a July 2018 opinion from his VA podiatrist, the examiner indicated that it was possible that the Veteran's foot disability may be related to past military duties. However, this opinion is couched in speculative terms and the examiner did not provide a rationale. Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993). Further, the same examiner also completed a Disability Benefits Questionnaire in December 2019. Again, the examiner indicated that the Veteran's current foot condition was related to past military duties. However, the examiner again provided no rationale. As such, these opinions are inadequate and cannot be the basis for the award of service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). At the Board hearing, there was also an indication that the Veteran's foot disabilities may be secondary to his now service-connected ankle disabilities. Accordingly, in light of the above, the Board finds that an additional examination is necessary to determine the etiology of any current bilateral foot disability. Moreover, at the Board hearing, the Veteran indicated that he was treated for his foot disability at the Fifth General Hospital in Robinson barracks in Stuttgart, Germany. Although, service treatment records have been requested, it does not appear that the AOJ has requested the in-service hospital records, which are stored separately. Thus, on remand, appropriate steps should be taken to obtain these records. Entitlement to service connection for a low back disability is remanded. The Veteran asserts that he injured his back during a repelling training exercise when he was in service. He has reported that he has experienced back pain since the injury. Unfortunately, the claims file only contains the Veteran's March 1982 entrance examination. It does not appear that his other service treatment records are available. Given the missing service treatment records, VA has a heightened duty to assist the Veteran in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Cuevas v. Principi, 3 Vet. App. 542 (1992). This heightened duty includes providing a medical examination if review of the evidence of record determines that such examination is necessary to decide the claim. 38 C.F.R. § 3.159 (c) (4). Consequently, the Board finds that the Veteran should be afforded an examination in connection with this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that 38 C.F.R. § 3.159 (c) (4) presents a low threshold for the requirement of a VA examination). Entitlement to service connection for a bilateral knee disability is remanded. The Veteran asserts that he injured his left knee in service when he stepped in a hole. Again, the March 2019 lay statement indicated that she witnessed the Veteran stepping into a hole and injuring his left knee. At the Board hearing, he asserted that his right knee was secondary to his left knee due to his altered gait. There was also some indication that his knee disabilities are secondary to his service-connected bilateral ankle disability. As such, the Veteran should be afforded a VA examination to determine the etiology of any knee disability. Entitlement to service connection for asthma is remanded. The Veteran has asserted that while stationed in Germany, he was diagnosed with asthma and prescribed an inhaler. In light of the Veteran's contentions and given the VA's heightened duty to assist, the Boards finds that the Veteran should also be afforded a VA examination with respect to this issue. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, is remanded. The Veteran has asserted that he has PTSD due incidents that occurred while serving in Germany. Specifically, he witnessed a suicide attempt of a sergeant in January 1985 when he fell from the second floor barracks. He has also reported that he saw a fellow service member die from football injuries in October 1983. He further stated that he was standing guard at a post and was fearful of possible attack from a local gang. In support of his claim, the Veteran submitted an April 2015 private examination. The examiner noted the above described incidents as well as an incident where a friend was involved in a car accident. The examiner diagnosed the Veteran with PTSD due to his traumas experienced in service. In March 2015, the AOJ attempted to verify the stressor concerning the death of the fellow service member from football injuries but, in response, it was noted that the unit records for 1983 were unable to be located. Another response also indicated that records for 1985 were also not available. Further, both responses indicated that review of historical documents, including casualty data, did not document such incident. The AOJ also determined that the Veteran had not provided sufficient information with respect to the other stressors in order to verify such stressors. However, in the initial response, the AOJ was instructed to request documentation from the U.S. Army Crime Records Center with respect to the death from the football injuries. However, it does not appear that the AOJ contacted this facility. The Veteran further reiterated his stressors at the Board hearing. The Board finds that the Veteran has provided sufficient information to attempt to verify the witnessed suicide attempts. Moreover, the AOJ should contact to the US Army Crime Records Center to attempt to verify the football injury death as well as the suicide incidents. Importantly, VA clinical records also show ongoing treatment for depression, which the Veteran has also asserted began in service. At the Board hearing, the Veteran also appeared to indicate that his depression may be secondary to his service-connected physical disabilities. Given the above, the Board finds that the Veteran should be afforded a VA examination to determine whether he has a psychiatric disorder etiologically related to service. Entitlement to a TDIU is remanded. In light of the remand of the claims for service connection, the TDIU issue must be remanded because the claims are inextricably intertwined and must be considered together. Thus, a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.). The matters are REMANDED for the following action: 1. Ask the Veteran to either submit such records or complete a VA Form 21-4142 for any hearing tests for the police department. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Take appropriate steps to obtain the Veteran's service hospital records from Fifth General Hospital in Robinson barracks in Stuttgart, Germany. 3. Take further steps to verify the in-service stressors described by the Veteran, including the suicide attempts. Specifically, as the stressors involve the deaths of fellow service members, the AOJ must contact US Army Crime Records Center to attempt to verify the stressors. All attempts must be outlined in a memorandum and associated with the claims file. 4. Obtain VA clinical records dated from January 2021 to the present. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his bilateral hearing loss. The examiner must review the claims file. The examiner must opine whether it was at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatably) due to its natural progress. The examiner must provide a detailed rationale to support the opinion. In proffering this opinion, the examiner must specifically consider the Veteran's lay statements as well as the finding by the May 2019 VA examiner that his tinnitus had its onset in service due to excessive noise. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any currently diagnosed bilateral foot disorder, to include pes planus. The examiner must review the claims file. The examiner must clearly delineate all current bilateral foot disorders. With respect to preexisting pes planus, the examiner must opine whether it was at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatably) due to its natural progress. For any diagnosed bilateral foot disorder that did not preexist service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include the described inservice injury when the Veteran stepped in a hole. The examiner must also opine whether it is at least as likely as not that any foot disability is proximately due to or aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of its permanence) by his service-connected left and right ankle disabilities, to include any altered gait issues due to such disabilities. The examiner must provide a detailed rationale to support the opinions. In proffering the opinions, the examiner must address the March 2019 statement from a fellow service member concerning the Veteran's inservice injury, the Veteran's lay statements of continuity of symptomatology, the July 2018 opinion and December 2019 DBQ. 7. Schedule the Veteran for a VA examination for his low back disability. The examiner must review the claims file. The examiner is asked to opine whether it is at least as likely as not that any low back disability (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) related to service, to include the reported injury during a repelling training exercise. The examiner must also opine whether it is at least as likely as not that any low back disability is proximately due to or aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of its permanence) by his service-connected left and right ankle disabilities, to include any altered gait issues due to such disabilities. The examiner must provide a detailed rationale to support the opinions. The examiner must address the lay evidence of pertinent symptomatology. 8. Schedule the Veteran for a VA examination for his bilateral knee disability. The examiner must review the claims file. The examiner is asked to opine whether it is at least as likely as not that any bilateral knee disability (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) related to service, to include the described inservice injury when the Veteran stepped in a hole. The examiner must also opine whether it is at least as likely as not that any bilateral knee disability is proximately due to or aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of its permanence) by his service-connected left and right ankle disabilities, to include any altered gait issues due to such disabilities. If the examiner finds that the left knee is service-connected, the examiner must also opine whether it is at least as likely as not that any right knee disability is proximately due to or aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of its permanence) by his service-connected left knee disability, to include any altered gait issues due to such disability. The examiner must provide a detailed rationale to support the opinions. The examiner must address the lay evidence of pertinent symptomatology. 9. Schedule the Veteran for a VA examination for his asthma. The examiner must review the claims file. The examiner is asked to opine whether it is at least as likely as not that asthma is related to an in-service injury, event, or disease. The examiner must provide a detailed rationale to support the opinions. The examiner must address the lay evidence of pertinent symptomatology. 10. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any currently diagnosed acquired psychiatric disability. The examiner must review the claims file. The examiner should be notified whether any of the Veteran's in-service stressors have been verified. If PTSD is diagnosed, the examiner should indicate the stressor underlying it. For each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not that any such disorder is due to an in-service injury or disease. The examiner must also opine whether it is at least as likely as not that any acquired psychiatric disability is proximately due to or aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of its permanence) by his service-connected disabilities. A detailed rationale for all opinions expressed should be provided. The examiner must consider the Veteran's lay statements. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.