Citation Nr: 21070347 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-35 706 DATE: November 23, 2021 REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a bilateral upper extremity radiculopathy is remanded. Entitlement to service connection for bilateral lower extremity radiculopathy is remanded. Entitlement to service connection for flat feet is remanded. Entitlement to service connection for a sinus disability is remanded. Entitlement to service connection for a respiratory disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1978 to February 1982. The Veteran testified at hearing before the undersigned in February 2019. A transcript of the hearing has been associated with the claims file. The claims were most recently before the Board in September 2020 when they were remanded for additional development. There has not been substantial compliance with the Board's remand directives and the claims must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for tinnitus is remanded. The claim must be remanded again to obtain outstanding treatment and Social Security Administration (SSA) records. See 38 C.F.R. § 3.159. The Veteran receives consistent treatment from VA; however, the last records associated with the file are dated in December 2020. Treatment records within the record show that additional treatment records were scanned into VISTA. See, e.g., VA Treatment, October 2019. Attempts must be made to obtain and associate with the claims file all records regarding the Veteran that are scanned into VISA so they can be reviewed by the Board. The Veteran applied SSA benefits and it appears his only income was from Social Security Disability (SSD). See VA Treatment, July 2013, December 2014. On remand, obtain relevant records from SSA. In August 2008 the Veteran reported that he was treated at St. Joseph's Emergency Room following being struck by a car. The claims file does not show that treatment records from St. Joseph's have been obtained. On remand, after obtaining any necessary authorization, attempts must be made to obtain relevant records regarding the Veteran from St. Joseph's. 2. Entitlement to service connection for a heart disability 3. Entitlement to service connection for hypertension is remanded. The claims must be remanded to obtain records related to February 2019 treatment at Hahnemann for a heart complaint. There are no records related to that reported treatment. The claims are also remanded to obtain adequate medical opinions. The November 2020 VA opinions for the heart and hypertension claims are inadequate. The rationale for the negative opinion for the heart disability relies on the passage of time between service and diagnosis. Although it identifies family history and substance abuse disorder in the past, the examiner does not provide any explanation, including the nature and significance of the family history or any discussion of the association between the disability and substance abuse. The hypertension examination opinion is not adequate because it relies solely on the lack of a diagnosis in service or up to December 2009. 4. Entitlement to service connection for a back disability is remanded. The claim is remanded again because the November 2020 VA opinion is inadequate. The examiner diagnosed degenerative arthritis of the spine. The rationale for the negative opinion is inadequate because it relies upon the passage of time from the Veteran's in service back strain and his post- service diagnosis. In addition, the examiner identifies that the Veteran had physical jobs after service and that he may have injured his back while living on the street, but does not provide the basis for those assumptions or discuss whether the Veteran's in-service back injury may have been an initial disability that was worsened by post service activities. 5. Entitlement to service connection for a bilateral upper extremity radiculopathy is remanded. 6. Entitlement to service connection for bilateral lower extremity radiculopathy is remanded. The claims are remanded to obtain an adequate medical opinion. The negative November 2020 VA opinion was based on the examiner's finding that there was no objective evidence of a disability and that the symptoms were only subjective. There were no electromyography studies (EMG). The medical opinion is not adequate because the examiner did not contemplate whether the Veteran's reported symptoms alone may constitute disability, even without an identifiable underlying pathology, at any point during the period on appeal. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). 7. Entitlement to service connection for flat feet is remanded. The claim is remanded again to obtain an adequate medical opinion. The November 2020 negative VA opinion is based on that examiner's conclusion that the Veteran's pre-existing flat foot disability was not aggravated by service because pes planus was not noted on separation examination and there is no diagnosis of flat feet after service. The opinion is inadequate because the examiner noted but did not comment on diagnoses of hammer toes or arthritis and failed to consider the Veteran's report that he bought inserts while in service to put in his boots because his boots were flat with no arches, and that his feet hurt in service due to his boots. 8. Entitlement to service connection for a sinus disability is remanded. The claim is remanded again because November 2020 negative VA opinion is inadequate. The rationale is based solely upon the passage of time from the Veteran's active service to diagnosis. 9. Entitlement to service connection for a respiratory disability is remanded. The claim is remanded to obtain an adequate medical opinion. The November 2020negative VA opinion is inadequate because it does not adequately comment on the Veteran's reports of training in a gas chamber, exposure to smoke while standing fire watch in service or in-service notations for bronchitis. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from December 2020 to the present. 2. Obtain complete treatment records regarding the Veteran scanned into VISTA Imaging. 3. Take all appropriate action to obtain SSA records, including copies of any determination on a claim for benefits, together with the medical records that served as the basis for any such determination.. 4. Ask the Veteran to complete a VA Form 21-4142 for Hahnemann and St. Joseph's. Make two requests for the authorized records from Hahnemann, unless it is clear after the first request that a second request would be futile. 5. After completion of the above, schedule the Veteran for examinations (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by appropriate clinicians to determine the nature and etiology of any back, upper and lower extremity radiculopathy, heart, hypertension, respiratory, and sinus disability found to be present. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including back strain, heavy lifting, blood pressure notations, X-ray to rule out cardiovascular abnormalities, and reported exposure to gas and smoke in service. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state why. 6. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of any flat foot disability found to be present. The examiner must opine whether it is at least as likely as not any preexisting flat foot disability was permanently aggravated beyond its natural progress by the Veteran's active service, to include wearing of boots and reported foot pain in service. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state why. M.E. LARKIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert J. Burriesci, 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.