Citation Nr: 21065994 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 19-08 929A DATE: October 28, 2021 REMAND Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for residuals of a broken nose is remanded. Entitlement to service connection for residuals of partially missing left thumb is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1955 to December 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). At the outset, the Board notes that the Veteran's service treatment records (STRs) and military personnel records (MPRs) have been determined by VA to be lost/destroyed by a fire. See November 29, 2017, Response to Request for Information. In such instances, VA has a heightened duty to assist the Veteran in development of his claim, explain its findings and conclusions, and consider the benefit of the doubt. Dixon v. Derwinski, 3 Vet. App. 261, 26364 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); 38 C.F.R. § 3.159(e). The agency of original jurisdiction (AOJ) notified the Veteran of the unavailability of his records and asked him to complete an attached NA Form 13055. See December 22, 2017. The Veteran has not complied. He did, however, submit in February 2018 a VA Form 21-4138 detailing his allegations as to each claim. Those allegations will be discussed in turn. 1. Entitlement to service connection for bilateral hearing loss, tinnitus, and a bilateral foot disability are remanded. As to tinnitus and bilateral hearing loss, the Veteran asserts that his barrack was next to the "alert/ready aircraft," which would be tested "every few hours" to ensure they were mission ready. It is this noise exposure he alleges, that caused his hearing loss and tinnitus. Feb. 2, 2018, VA Form 21-4138. Concerning his bilateral feet, he alleges that they began hurting a few weeks after entry into service; he tried to complain but was told there was no time for that unless he wanted to be sent back to another flight in basic training. Ibid. The Board construes this contention as entitlement to service connection for a bilateral foot disability due to the general rigors of service. There is a low probability that these allegations would substantiated by the Veteran's military recordseven if they were available for review. They are unlikely to show where the Veteran's barrack was located and if he was near alarms, and he affirmatively admits that he sought no treatment for his feet. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained, there are four factors that must be met: (1) whether there is competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is insufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4). The Board finds that remand is necessary to afford the Veteran examinations for these issues. The Veteran, as a lay person, is competent to report that he experiences difficulty hearing and ringing in his ears. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). VA medical center (VAMC) records from August 2018 confirm pes planus, calcaneal spurring, and degenerative changes in the first metatarsal phalangeal joint and throughout the interphalangeal joints with mild degenerative changes at the midfoot, bilaterally. The Board concedes, considering a heightened duty to assist, see Dixon, 3 Vet. App. at 26364, that the Veteran both was exposed to load noise and experienced bilateral foot pain during service. These conceded in-service events at least indicate that the Veteran's current persistent symptoms and diagnosed conditions could be related to service. The record, however, otherwise does not contain the necessary medical evidence to adjudicate these claims. Thus, remand is required to afford the Veteran examinations and obtain medical opinions concerning these issues. See 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 81; 38 C.F.R. § 3.159(c)(4). 2. Entitlement to service connection for COPD, residuals of a broken nose, and residuals of partially missing left thumb are remanded. As opposed to the other three claims, the Veteran did provide some degree of specificity regarding these claims, and it is possible that there are records in existence but not yet obtained. For his COPD, the Veteran acknowledges that, prior to military service, he was diagnosed with asthma. During a basic-training obstacle course at Samson Air Force Base (Geneva, New York), however, he accidentally became inundated by several smoke grenades. A few days following this training, he alleges that he was hospitalized for pneumonia. Since then, he maintains that he has had respiratory problems all the way up until his COPD diagnosis. See Feb. 2, 2018, VA Form 21-4138; Sept. 1, 2017, Congressional Correspondence. As to his nose, the Veteran alleges that he broke it while playing basketball in the spring of 1958 at Palm Beach Air Force Base. He states that he was treated at the hospital for this condition and released that same day. Feb. 2, 2018, VA Form 21-4138 Lastly, for his left thumb, the Veteran asserts that, while at the Gifu auxiliary airfield in Japan in 1956, he cut off the tip of his left thumb while operating a paper cut. He endorses walking to the base dispensary where his wound was cauterized and bandaged. Ibid. For the COPD and nose issues, the Veteran affirmatively endorses being treated on a base hospital. Such records may have been kept separate and apart from ordinary STRs. As such, the AOJ should make attempts to secure these records consistent with its duty to assist. See 38 C.F.R. § 3.159(c)(2), (3). As to the thumb injury, while no indication of hospital treatment is noted, the Veteran nevertheless should be afforded another opportunity to complete and return a NA Form 13055 so that the AOJ can, to the best of its ability, reconstruct the Veteran's records and service. The matters are REMANDED for the following action: 1. Send to the Veteran a NA Form 13055 so that he can provide sufficient information in attempts to reconstruct his military records. 2. Obtain the Veteran's medical records from the Samson Air Force Base hospital showing his one-week hospitalization for pneumonia. 3. Obtain the Veteran's medical records from the Palm Beach Air Force Base hospital showing treatment for a broken nose in or around 1958. 4. If any of the above records do not exist or cannot be obtained, then notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 5. Schedule the Veteran for an audiological examination for bilateral hearing loss and tinnitus. The examiner shall answer the following: (a.) Does the Veteran have a diagnosis of tinnitus? (b.) Does the Veteran have a diagnosis of bilateral hearing loss for VA compensation purposes? (c.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's tinnitus occurred in, or is the result of, his period of active duty service, to include exposure to loud alarms for testing aircraft? (d.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's bilateral hearing loss occurred in, or is the result of, his period of active duty service, to include exposure to loud alarms for testing aircraft? 6. Schedule the Veteran for an examination for his bilateral foot conditions. The examiner shall answer the following: Is it at least as likely as not (a fifty percent probability or greater) that any of the Veteran's bilateral foot conditions occurred in, or is the result of, his period of active duty service, to include as due to the general rigors of service? Note: 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 against it. A detailed rationale supporting the examiner's opinions must be provided. The Veteran's military records are not available for review in this case. It should be assumed that he was exposed to loud alarms and experienced pain in his feet while in service. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. (SIGNATURE ON NEXT PAGE) JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, Associate 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.