Citation Nr: 21067237 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 13-23 645 DATE: November 3, 2021 ORDER New and material evidence has been received and the petition to reopen the previously denied claim of entitlement to service connection for a right ankle disability is granted. New and material evidence has been received and the petition to reopen the previously denied claim of entitlement to service connection for a left ankle disability is granted. Entitlement to service connection for right ankle arthritis is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for bursitis is remanded. Entitlement to service connection for diabetes mellitus type II (diabetes), to include as secondary to service-connected disabilities, is remanded. Entitlement to an increased rating for kidney stones, to include a separate compensable rating for urinary frequency and/or urinary tract infections (UTIs), is remanded. FINDINGS OF FACT 1. A May 2013 rating decision denied entitlement to service connection for swelling ankles due to the absence of a current disability; the Veteran did not appeal this decision, and new and material evidence was not actually or constructively received within one year of the issuance of that decision. 2. New and material evidence has been received that relates to the presence of a current right ankle disability. 3. New and material evidence has been received that relates to the presence of a current left ankle disability. 4. The Veteran has a current diagnosis of right ankle arthritis and continuity of symptomatology is established. 5. The Veteran has a current diagnosis tinnitus and continuity of symptomatology is established. CONCLUSIONS OF LAW 1. The May 2013 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a right ankle disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a left ankle disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for entitlement to service connection for right ankle arthritis are met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a). 5. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1980 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2012 and July 2014 rating decisions by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In February 2015, the Veteran testified before the undersigned. In May 2015, the Board reopened the Veteran's claim for service connection for diabetes, and remanded this claim, along his claim for a rating in excess of 20 percent for history of kidney stones. The Board also directed the AOJ to issue a Statement of the Case (SOC) as to the Veteran's appeal of the July 2014 rating decision. The SOC was issued as directed and the Veteran perfected an appeal. In April 2018, the Board requested an opinion from a medical specialist under the employ of the Veterans Health Administration (VHA). The VHA provided the Board with the requested opinion in June 2018 (June 2018 VHA Opinion) and it has been associated with the record. In November 2018, the Board granted a maximum schedular 30 percent rating for kidney stones and remanded for additional development the issues of entitlement to service connection for diabetes and entitlement to a separate compensable rating for urinary frequency and/or UTIs associated with kidney stones. In June 2020, the AOJ granted a separate noncompensable (zero percent) rating for UTIs. However, the issue of entitlement to a compensable rating for UTIs remains on appeal, as no action by the AOJ (other than a full grant of the benefit sought on appeal) can remove an issue from appellate status. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Separately, in August 2020 the Board remanded for the issuance of a Supplemental SOC (SSOC) the issues of entitlement to service connection for tinnitus and bursitis, and whether new and material evidence had been received to reopen the claims of entitlement to service connection for ankle disabilities. In October 2020, the SSOC was issued as directed. The appeal of these issues was subsequently merged with the appeal of the issues last before the Board in November 2018. The Veteran was scheduled for a Board hearing in June 2019, but this hearing was cancelled. See August 2020 Board Remand. The Veteran has not shown good cause for failure to report and thus his May 2016 Board hearing request is deemed withdrawn. The Board emphasizes that this hearing request related only to issues that have been granted in full or remanded by the present decision. If the Veteran wishes, he may request another Board hearing. The Board observes that in the November 2018 Decision and Remand, it referred a claim of entitlement to service connection for depression. In February 2020, the Veteran filed a formal claim seeking service connection for depression, which was granted in April 2020 effective as of the date that the February 2020 claim was filed. However, the assigned effective date did not consider the claim referred by the Board in November 2018 based on the Veteran's February 2015 hearing testimony. See also June 2020 Administrative Decision (first noting referred claim after the issuance of the April 2020 rating decision). If the Veteran believes that he is entitled to retroactive benefits for depression or that the February 2020 effective date is otherwise clearly erroneous, he should consult with his representative. New and Material Evidence Under VA's legacy appeals system, which governs this appeal, a rating decision is final unless it is timely appealed or new and material evidence is received within one year of the issuance of the decision. However, a final claim may be reopened if new and material evidence is submitted. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 U.S.C. § 5108 (as in effect prior to February 19, 2019); 38 C.F.R. § 3.156. In May 2013, the AOJ denied entitlement to service connection for swelling ankles because the evidence did not show a current diagnosis of an ankle disability. The Veteran did not appeal the May 2013 rating decision and new and material evidence was not actually or constructively received within one year of the issuance of that decision. Thus, the May 2013 rating decision is final. 1. New and material evidence has been received and the petition to reopen the previously denied claim of entitlement to service connection for a right ankle disability is granted. In November 2014, the AOJ secured private treatment records showing a diagnosis of right ankle arthritis. See September 23, 2014 Private Treatment Note. This evidence is new, as it was not previously of record. Moreover, it is material, as it relates to the presence of a current right ankle disability. Thus, as new and material evidence has been received, the claim of entitlement to service connection for a right ankle disability is reopened. 2. New and material evidence has been received and the petition to reopen the previously denied claim of entitlement to service connection for a left ankle disability is granted. In September 2019, a VA podiatrist diagnosed the Veteran with bilateral ankle pain and instability, with painful motion. See September 19, 2019 VA Treatment Note. This evidence is new, as it was not previously of record. Moreover, it is material, as it relates to the presence of a current left ankle disability. In this regard, a current disability exists when there is a functional impairment due to pain or other causes, even in the absence of diagnosed pathology. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran's painful motion is consistent with at least a 10 percent disability rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59. Thus, this painful motion is akin to a compensable functional impairment in earning capacity and constitutes a current disability. See Wait v. Wilkie, 33 Vet. App. 8 (2020). Thus, as new and material evidence has been received, the claim of entitlement to service connection for a left ankle disability is reopened. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection is warranted for certain chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis and organic diseases of the nervous system, that are shown to be chronic in service or that began in service and where there is a continuity of symptomatology to the present. 38 C.F.R. § 3.303(b). Tinnitus due to acoustic trauma is an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). 3. Entitlement to service connection for right ankle arthritis is granted. The Veteran asserts that service connection for his right ankle disability is warranted, as he sprained his ankles several times in service. The Veteran has a current diagnosis of right ankle arthritis. See September 23, 2014 Private Treatment Note; February 15, 2017 VA Treatment Note. Moreover, his service treatment records (STRs) show multiple right ankle injuries. Thus, the key question on appeal is whether a nexus linking his current disability and his service can be established or presumed. A June 2015 VA-contracted examiner found that the Veteran did not have a current ankle diagnosis. However, this examination report is not based on an accurate history of the Veteran's disability and thus it is not probative. In September 2014, a VA staff physician noted the Veteran's report of ankle pain "off and on" for the past 30 years, i.e., since 1984. See September 3, 2014 VA Treatment Note. Later that month, the Veteran reported chronic right ankle pain that had been progressively worsening over the past few years. See September 23, 2014 Private Treatment Note. In February 2017, he reported "years of chronic pain" with several sprains in the past. See February 15, 2017 VA Treatment Note. Here, the Veteran has competently and credibly reported a continuity of symptomatology since service, specifically pain off and on since approximately 1984. Moreover, there is no evidence attributing his right ankle arthritis to an intercurrent etiology. Accordingly, presumptive service connection for right ankle arthritis is warranted. 4. Entitlement to service connection for tinnitus is granted. The Veteran has a current diagnosis of tinnitus. See July 2014 VA Audiology Examination Report; February 15, 2017 VA Treatment Note. The Veteran is in receipt of the Sharpshooter Rifle Badge and acoustic trauma is conceded with the circumstances of his service. See 38 U.S.C. § 1154. Thus, the key question on appeal is whether a nexus linking his current disability and his service can be established or presumed. The Veteran reported the onset of tinnitus in 1984 while doing weapons training while assigned to guard duty. See August 2014 Notice of Disagreement (NOD). A July 2014 VA audiologist diagnosed tinnitus and noted the Veteran's report of bilateral recurrent tinnitus over the past 32 years, i.e., since 1982. The examiner opined that tinnitus was less likely than not due to military noise exposure and more likely than not due to the Veteran's clinical diagnosis of hearing loss. However, the examiner's rationale as inadequate, as he relied on a 2005 study by the Institute of Medicine (IOM) for the proposition that delayed onset hearing loss is unlikely, notwithstanding that the excerpt quoted by the examiner stated that the definitive studies to address this issue have not been performed. See also McCray v. Wilkie, 31 Vet. App. 243 (2019). Indeed, the Veteran's representative asserted numerous problems with the examiner relying on this study. See October 2021 Informal Hearing Presentation (IHP). Moreover, the examiner did not address the Veteran's competent and credible reports of longstanding tinnitus. In any event, the Board assigns to probative weight to this opinion, as it does not have a sound rationale and is not based on an accurate factual basis. In February 2017, a VA physician noted the Veteran's report of tinnitus of 30 years duration, i.e., since approximately 1987. He opined that the Veteran's tinnitus was likely related to occupational noise exposure and noted the Veteran's work as an aircraft parts handler on the flight line. See February 15, 2017 VA Treatment Note. Here, the Veteran has competently and credibly reported recurrent tinnitus since service. In this regard, the slight temporal discrepancy noted in the report to the February 2017 physician is essentially consistent with his report to the July 2014 examiner. While the February 2017 physician did not provide a detailed rationale for his opinion linking tinnitus to noise exposure in service, the opinion is consistent with an award of service connection based on continuity of symptomatology. Accordingly, the appeal as to this issue is granted. REASONS FOR REMAND 5. Entitlement to service connection for a left ankle disability is remanded. 6. Entitlement to service connection for bursitis is remanded. There is evidence of a current left ankle disability and the Veteran's STRs show a left ankle injury in service. However, the current record is insufficient to decide the claim. Accordingly, a medical opinion should be secured as to the nature and etiology of the Veteran's left ankle disability, and he should be afforded another examination. Updated VA and private treatment records should also be secured. Additionally, the Board acknowledges the argument by the Veteran's representative that his STRs are apparently incomplete. See October 2021 IHP at 7. On remand, the Veteran should be advised that his STRs may be incomplete and he should be afforded an opportunity to submit records. Action on the claim of entitlement to service connection for bursitis is deferred pending this development. 7. Entitlement to service connection for diabetes, to include as secondary to service-connected disabilities, is remanded. In October 2019, a medical opinion as to the nature and etiology of the Veteran's diabetes was secured, as directed by the November 2018 remand. However, the Board observes that the Veteran is now service-connected for his right ankle arthritis, for which he has received injections of corticosteroids. See, e.g., May 12, 2015 VA Treatment Note. There is evidence of an association between diabetes and steroids. See, e.g., June 2018 VHA Opinion. Thus, an opinion should be secured as to whether diabetes is proximately due to or aggravated by treatment for right ankle arthritis. Moreover, the thorough rationale provided by the October 2019 examiner noted that quantity and quality of sleep may predict the risk of development of diabetes. The Veteran is now in receipt of service connection for depression and chronic sleep impairment is noted as a symptom. See March 2020 Psychiatric Examination Report. Additionally, the examiner noted that the risk of developing diabetes was associated with behavioral factors during young adulthood. The Veteran reported that he did not always go to the doctor when he was a young man in military service. See, e.g., May 2016 Veteran Statement. On remand, an addendum opinion should be secured addressing direct service connection. 8. Entitlement to an increased rating for kidney stones, to include a separate compensable rating for urinary frequency and/or UTIs, is remanded. Remand is necessary to secure an adequate opinion that addresses whether the Veteran's urinary frequency has been aggravated (worsened beyond natural progression) by his service-connected kidney stones. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Inform the Veteran that his service treatment records may be incomplete and provide an opportunity to identify or submit outstanding service records. 4. Then schedule the Veteran for an examination to determine the nature and etiology of his claimed left ankle disability. The examiner should have access to the Veteran's claims file. All necessary testing should be performed. The examiner should address the following: (a) Diagnose all current left ankle disabilities. For the purposes of this question, a current disability is any disability present since January 2014, even if subsequently resolved. In addressing this question, the examiner should specifically state whether bursitis has been present during the period on appeal. (b) For each disability diagnosed in sub-part (a), please opine as to whether it as at least as likely as not (50 percent or greater probability) that such disability had its onset in or is otherwise etiologically related to the Veteran's active service, to include the documented left ankle injury. In addressing this question, the examiner should address the April 1984 left ankle inversion injury documented in his service treatment records, as well as the cumulative impact of the Veteran's military duties. A complete rationale should be given for all opinions and conclusions expressed. In the event that the examiner cannot provide an opinion without resorting to speculation, it is essential that he or she provide a rationale for this conclusion (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 5. Then obtain an addendum opinion addressing the nature and etiology of the Veteran's diabetes. The claims file should be made available to and should be reviewed by the examiner. No examination of the Veteran is necessary unless the examiner deems otherwise. The examiner should address the following: (a) Please opine as to whether it is at least as likely as not that the Veteran's diabetes had its onset in or is otherwise etiologically related to his active service. In addressing this question, please discuss the October 2019 examiner's statement that the risk of developing diabetes is related to behavioral factors in young adulthood. (b) Please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diabetes is proximately due to his service-connected disabilities, to include depression with associated chronic sleep impairment and/or steroid injections for treating right ankle arthritis. (c) Please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diabetes has been aggravated (worsened beyond natural progression) by his service-connected disabilities, to include depression with chronic sleep impairment and/or steroid injections for treating right ankle arthritis. In addressing sub-parts (b) and (c) of this question, the examiner is advised that there is no legal requirement for a diagnosis of the primary disability (here, depression and right ankle arthritis) prior to the diagnosis of the secondary disability (here, diabetes). Thus, any opinion that relies solely upon diabetes having been diagnosed earlier than depression and right ankle arthritis will be returned as inadequate. Moreover, in addressing sub-parts (b) and (c) of this question, the examiner should discuss the effects, if any, of steroid injections for the Veteran's right ankle arthritis on the Veteran's diabetes. The examiner's attention is invited to the June 2018 opinion of a VHA specialist discussing the relationship between steroids and diabetes. Moreover, the examiner should consider the October 2019 examiner's statement that quantity and quality of sleep may predict the risk of development of diabetes, and chronic sleep impairment is noted as a symptom of his service-connected depression. See March 2020 Psychiatric Examination Report. A complete rationale should be given for all opinions and conclusions expressed. In the event that the examiner cannot provide an opinion without resorting to speculation, it is essential that he or she provide a rationale for this conclusion (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 6. Then obtain an addendum opinion addressing the nature and etiology of the Veteran's urinary frequency. The claims file should be made available to and should be reviewed by the examiner. No examination of the Veteran is necessary unless the examiner deems otherwise. The examiner should address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's urinary frequency has been aggravated (worsened beyond natural progression) by his service-connected chronic kidney stones with small renal cysts, dysuria, hematuria, and UTIs. In addressing this question, the examiner is advised that there is no requirement for a permanent increase in disability. A complete rationale should be given for all opinions and conclusions expressed. In the event that the examiner cannot provide an opinion without resorting to speculation, it is essential that he or she provide a rationale for this conclusion (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.