Citation Nr: 21069729 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-63 181 DATE: November 19, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a bilateral hand disability, to include cold injury residuals and/or a neurological disorder, is remanded. Entitlement to service connection for a bilateral foot disability other than residuals of a right foot injury, to include cold injury residuals and/or a neurological disorder, is remanded. Entitlement to an initial rating in excess of 10 percent for residuals of a right foot injury is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1979 to April 1982. His decorations include the Sharpshooter Badge (Pistol). This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2013 and June 2014 rating decisions by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In this regard, and as discussed in the January 2020 Board decision and remand, those decisions never became final, as the Veteran timely disagreed with the initial rating for his right foot injury assigned by the June 2014 rating decision, and new and material evidence was received with respect to each of the unfavorable determinations in the December 2013 rating decision. In October 2019, the Veteran testified before the undersigned. In January 2020, the Board reopened the previously-denied claim of entitlement to service connection for frostbite of the hands, granted entitlement to service connection for tinnitus, and remanded the remaining issues on appeal for additional development. In March 2021, the AOJ granted an initial 10 percent rating for a right foot injury. As this was a partial grant of the benefit sought, this issue remains on appeal. 1. Entitlement to service connection for bilateral hearing loss is remanded. The Board regrets the delay, but remand is necessary to secure an adequate medical opinion and achieve substantial compliance with the Board's remand directives. In this regard, the February 2021 examiner explained that the Veteran's hearing loss was mostly conductive, with a mild sensorineural component at 3000-4000 hertz. The examiner opined that the Veteran's hearing loss was likely due to middle ear pathology, which is not due to noise exposure in service. The examiner noted the Veteran's left ear canal pain in service would very likely have nothing to do with the Veteran's current hearing loss, although the examiner "would need more medical information to determine why the pain was there." Initially, the Board observes that additional development is necessary to determine, if possible, why the Veteran's left ear canal pain was present, as this deficiency is not related to a lack of medical knowledge in general. Moreover, notwithstanding the examiner's discussion of audiogram results and whether an in-service threshold shift occurred, the examiner stated that the Veteran's hearing tests showed normal hearing bilaterally but did not discuss the "minimal high-frequency hearing loss" diagnosed at separation. On remand, an opinion should be secured addressing whether there is an etiology between current hearing loss (to include the mild sensorineural component) and the "minimal high frequency hearing loss" at separation. The examiner should address what additional evidence could be secured to explain "why the [left ear canal] pain" manifested, and whether the Veteran's current hearing loss is related to that pain or the ENT problems that the Veteran noted at separation. Updated VA and private treatment records should also be secured. 2. Entitlement to service connection for a bilateral hand disability, to include cold injury residuals and/or a neurological disorder, is remanded. 3. Entitlement to service connection for a bilateral foot disability other than residuals of a right foot injury, to include cold injury residuals and/or a neurological disorder, is remanded. Remand is also necessary with respect to the claimed hand and foot disabilities. In this regard, the examiner did not provide the medical opinion requested by the Board because "[t]here was no objective evidence to warrant a diagnosis for the claimed" condition. However, there is no requirement that a diagnosis must be supported by "objective" evidence. Additionally, the examiner incorrectly noted that EMG testing had not been performed. Compare November 2020 Peripheral Nerves Examination Report at 12 (stating EMG studies have not been performed); February 2015 VA Neuropathy Examination Report at 6 (noting EMG studies were performed in February 2015). Thus, the examiner's opinion is not based on an accurate factual basis. Notwithstanding the absence of diagnosed pathology, the Board observes that the Veteran has reported functional loss. See November 2020 Hand and Finger Examination Report at 4. Functional loss, even in the absence of diagnosed pathology, can constitute a current disability for VA compensation purposes. On remand, the Veteran should be afforded another examination and the examiner should explicitly address whether the Veteran's reported symptoms manifest functional loss, and moreover should provide an opinion as to whether these are related to the symptoms documented in service and that the Veteran claimed compensation in relation to in 1982. 4. Entitlement to an initial rating in excess of 10 percent for residuals of a right foot injury is remanded. Action on this issue is deferred pending completion of the development directed above. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. After completing #1 and #2, obtain an addendum opinion from an examiner other than the November 2013 examiner and February 2021 examiner addressing the etiology of the Veteran's bilateral hearing loss. The claims file should be made available to and should be reviewed by the examiner. No additional examination of the Veteran is necessary unless the examiner deems otherwise. The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's bilateral hearing loss had its onset during or is otherwise etiologically related to the Veteran's active service, to include as a result of conceded noise exposure therein and/or as a result of the "minimal high frequency hearing loss" noted at separation. The examiner is advised that the Veteran is presumed sound at service entry and was diagnosed with minimal high frequency hearing loss at separation. Thus, it is essential that any interpretation of the Veteran's audiograms explicitly address the diagnosis of hearing loss at separation and take into account the benefit of the doubt afforded to claimants. Moreover, if any only if the examiner opines that the Veteran's current hearing loss is less likely than not related to diagnosed hearing loss or noise exposure in service, the examiner should discuss the Veteran's left ear canal pain noted in service and explain the relationship, if any, to the Veteran's current hearing loss, to include any middle ear pathology. The examiner must address the ENT problems in service that the Veteran noted in his separation report of medical history. If the likely nature of the left ear canal pain in service cannot be determined, the examiner should explain what information is needed to determine the nature of the left ear canal pain in service (i.e., records from in service, an expert medical opinion, additional treatment records, etc.). Additionally, if the examiner opines that conductive hearing loss is not etiologically related to service, the examiner must also address the etiology of the Veteran's sensorineural hearing loss. A complete rationale should be provided for all opinions. If the requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. 4. After completing #1 and #2, schedule an examination with an examiner other than the February 2015 and November 2020 examiner addressing the nature and etiology of the Veteran's claimed disabilities of the bilateral hands and feet, to include cold injury residuals. The claims file should be made available to and should be reviewed by the examiner. Any necessary testing should be conducted. The examiner should address the following items: (a) Please diagnose all disabilities and functional impairment of the hands manifested by pain and/or numbness, to include without limitation any peripheral neuropathy and any residuals of a cold injury. For the purposes of this question, a functional impairment due to pain, weakness, or other cause constitutes a disability, even in the absence of diagnosed pathology. Thus, the examiner should explicitly address the Veteran's report of hand pain since service, even in the absence of diagnosed pathology. Moreover, there is no requirement of any "objective" medical evidence to support a diagnosis, and any opinion premised solely on the absence of objective evidence will be returned as inadequate. (b) For each disability/functional impairment diagnosed in sub-part (a) above, please opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder had its onset during or is otherwise etiologically related to the Veteran's active service, to include as a result of conceded exposure to cold therein and/or diagnosed arthralgia in service. In addressing this question, the examiner should discuss the Veteran's service treatment records showing repeated complaints of and treatment for hand numbness and an in-service diagnosis of arthralgia, as well as the Veteran's May 1982 claim for compensation for "frostbite of the hands" and his report that his symptoms have persisted since service. The examiner is advised that there is no requirement of evidence of continuity of care, and the Veteran has reported that he just worked through his hand pain because he was young and had to work. See November 2020 Hand and Finger Examination Report (January 2021 C&P Exam) at 3. (c) Please diagnose all disabilities and functional impairment of the feet manifested by pain and/or numbness, to include without limitation any peripheral neuropathy and any residuals of a cold injury. For the purposes of this question, a functional impairment due to pain, weakness, or other cause constitutes a disability, even in the absence of diagnosed pathology. Moreover, there is no requirement of any "objective" medical evidence to support a diagnosis, and any opinion premised solely on the absence of objective evidence will be returned as inadequate. (d) For each diagnosis/functional impairment in part (c) other than the residuals of the Veteran's right foot injury, please opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder had its onset during or is otherwise etiologically related to the Veteran's active service, to include as a result of conceded exposure to cold therein. The examiner is advised that exposure to cold on multiple occasions is conceded as consistent with the circumstances of the Veteran's service as an armor crewman training in Kansas. The examiner's attention is invited to the Veteran's STRs for a detailed history of his treatment for hand pain, stiffness, and numbness in service. A complete rationale should be provided for all opinions. If the requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. 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.