Citation Nr: 21071719 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-01 981 DATE: December 1, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for bilateral hand osteoarthritis, claimed as hand condition and pain, is remanded. Entitlement to a rating in excess of 20 percent for residuals of cold weather injury, right lower extremity, is remanded. Entitlement to a rating in excess of 20 percent for residuals of cold weather injury, left lower extremity, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The appellant served on active duty in the U.S. Army from September 1977 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). An August 2013 rating decision, in pertinent part, denied entitlement to service connection for bilateral hearing loss, tinnitus, and major depressive disorder, claimed as anxiety condition, stress condition, depression and obsessive-compulsive disorder with alcohol/cocaine use. Received in August 2014 was a statement from the Veteran which appeared to express disagreement with some or all of the rating decision. The Veteran was thus sent a letter in August 2016 requesting that he clarify which issue or issues he intended to appeal from the August 2013 rating decision in that August 2014 statement. Received in September 2016 was a written response from the Veteran in which he clarified that he wished to appeal the denials of entitlement to service connection for bilateral hearing loss and tinnitus. An August 2014 rating decision, in pertinent part, denied entitlement to service connection for bilateral hand osteoarthritis, claimed as hand condition and pain. Received in December 2014 from the Veteran's former representative was a VA Form 21-0958, which did not list any specific issue or issues. The aforementioned August 2016 letter also requested clarification as to the issue or issues the Veteran wished to appeal from the August 2014 rating decision. In the September 2016 response, the Veteran also clarified that he wished to appeal the denial of entitlement to service connection for the bilateral hand disability. A Statement of the Case (SOC) was issued in October 2016. A timely substantive appeal was received in December 2016. An August 2018 rating decision, in pertinent part, denied entitlement to ratings in excess of 20 percent for residuals of cold weather injury of the bilateral lower extremities, denied entitlement to service connection for disruptive mood dysregulation disorder, claimed as mood disorder, and denied entitlement to a TDIU. The Veteran filed a timely Notice of Disagreement (NOD), received in November 2018. A Statement of the Case (SOC) was issued in February 2020. A timely substantive appeal was received in March 2020. The Veteran was afforded a virtual hearing before the undersigned Acting Veterans Law Judge (AVLJ) in July 2021. A transcript is of record. Additionally, the Board observes that entitlement to service connection for major depressive disorder, claimed as anxiety condition, stress condition, depression and obsessive-compulsive disorder with alcohol/cocaine use was denied in the August 2013 rating decision. While the Veteran did not reference this issue in his September 2016 response to the August 2016 clarification letter, the Board has reviewed the August 2014 statement, and finds that such constitutes an informal NOD to the August 2013 denial of entitlement to service connection for major depressive disorder, claimed as anxiety condition, stress condition, depression and obsessive-compulsive disorder with alcohol/cocaine use. As such, new and material evidence is not required for any portion of the claim of entitlement to service connection for an acquired psychiatric disorder. The Board has recharacterized the issues of entitlement to service connection for major depressive disorder, claimed as anxiety condition, stress condition, depression and obsessive-compulsive disorder with alcohol/cocaine use and entitlement to service connection for mood dysregulation disorder, claimed as mood disorder, as entitlement to service connection for an acquired psychiatric disorder. Given the Veteran's assertions, the evidence of record, and the actions by the RO below, no prejudice to the Veteran has resulted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As a final initial matter, the Board observes that the Veteran's attorney has contended that a September 2009 denial of entitlement to service connection for a low back injury was clearly and unmistakably erroneous in the November 2018 brief. It was also argued that the Veteran had intended to appeal the August 2013 denial of service connection for a low back injury, even though the Veteran did not mention the low back injury issue on his September 2016 response to the August 2016 letter requesting clarification as to which issue or issues he wished to appeal from the August 2013 rating decision. The attorney also indicated that there had already been a NOD filed regarding the low back claim. The Board has thoroughly reviewed the claims file, including the August 2014 correspondence from the Veteran, and finds that no timely NOD, formal or informal, was filed with respect to the low back injury claim. The Veteran and his attorney are advised that any claim of clear and unmistakable error (CUE) must be pled with specificity. Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002) ("to raise CUE there must be some degree of specificity as to what the alleged error is and... persuasive reasons must be given as to why the result would have been manifestly different"). If the Veteran wishes seek revision of a prior decision on the grounds of CUE, he should so notify the RO in writing, keeping in mind the specific requirements for CUE challenges set forth in 38 C.F.R. § 3.105(a). 1. Entitlement to service connection for bilateral hearing loss. The Board finds that remand of the issue of entitlement to service connection for bilateral hearing loss is warranted to ensure that all relevant VA-generated records are associated with the claims file. During his July 2021 hearing before the undersigned, the Veteran testified that he was exposed to loud military noises while on active duty, including artillery. He also reported that he was a drummer after separation. However, the Veteran stated that the in-service noises were much louder, such as from tanks and Howitzers, even with hearing protection, compared to the post-service drumming. It was noted during the hearing by the undersigned that the Veteran's MOS was consistent with in-service acoustic trauma. The Veteran has also testified during the July 2021 hearing before the undersigned that he has been diagnosed with hearing loss for VA purposes. See e.g. Warren v. Brown, 6 Vet. App. 4 (1993) (holding that a claimant's lay statements relating what a medical professional told him, filtered as they are through a layperson's sensibilities, are too attenuated and inherently unreliable to constitute competent evidence to support a claim). Based upon the results of the July 2013 VA audiological examination, the Veteran does not have a current disability of hearing loss for VA purposes in either ear. Indeed, pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 25 20 25 LEFT 20 25 30 20 25 The 1000-4000 Hertz average was 25 decibels in the right ear and 25 in the left. Speech recognition using the Maryland CNC word list was 94 percent in the right ear and 96 percent in the left. In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). In any event, the VA audiologist opined that it was less likely that the Veteran's bilateral hearing loss was incurred in or otherwise causally related to his active service because his hearing acuity was within normal limits at separation and there was no significant threshold shift when the results of the separation examination audiogram were compared to those obtained at enlistment. Additionally, hearing was tested and observed to be within normal limits in 2010 and 2012 VA clinical visits. The audiologist stated that there is no medical evidence to support delayed-onset noise-induced hearing loss. A January 2010 VA audiology consult states that examination was within normal limits bilaterally, but the pure tone thresholds were not reported. An April 2012 VA audiology consult also states that examination was within normal limits bilaterally, but again, the pure tone thresholds were not reported. The Board notes that VA audiological testing results are stored separately and are not typically included in CAPRI reports. VA medical records also include a December 2017 order for an audiology consult and indicate that such was scheduled for December 13, 2017. The VA medical records currently associated with the claims file do not include any clinical notes regarding any audiology visit since such time. In any event, the Veteran's testimony, coupled with the December 2017 order for an audiology consult, indicates that there may be relevant outstanding VA medical records, including any additional audiological visits and pure tone thresholds, which, again, are generally stored separately. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). As such, remand is warranted to obtain these potentially relevant VA-generated records. 2. Entitlement to service connection for tinnitus. During a January 2010 VA audiology consult, the Veteran denied tinnitus. However, he reported recurrent tinnitus in the right ear in April 2012 and was issued a bedside tinnitus masker. During the July 2013 VA hearing loss and tinnitus examination, the Veteran reported that he had experienced tinnitus for the past 10 to 12 years. Following examination of the Veteran and review of the claims file, a negative etiological opinion was offered. The VA audiologist noted that the Veteran had significant post-service occupational noise exposure in construction, and that, although hearing protection was used, such could not be ruled out as a contributing factor to his tinnitus. It was also noted that a 2005 Institute of Medicine (IOM) Study titled "Noise and Military Service: Implications for Hearing Loss and Tinnitus" conceded that there was a possibility of a delay in onset of tinnitus due to noise exposure, but as the interval between noise exposure and the onset of tinnitus lengthened, the possibility that tinnitus was triggered by other factors increased. However, a more complete understanding of mechanisms that generate tinnitus was needed before the existence of delayed-onset noise-induced tinnitus could be confirmed or rejected. Notably, the Veteran had denied tinnitus in 2009 and 2010. It is well established that medical opinions that are inconclusive in nature do not provide a sufficient basis upon which to support a claim. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor's opinion that "it is possible" and "it is within the realm of medical possibility" too speculative to establish medical nexus); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (using the words "could not rule out" was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that a physician's statement that a service-connected disorder "may or may not" have prevented medical personnel from averting a Veteran's death was not sufficient). Given the applicable standard of proof, the Board finds that the July 2013 medical opinion is inadequate as to the question of nexus for tinnitus. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds that remand is warranted to obtain a new etiological opinion with respect to the Veteran's tinnitus. 3. Entitlement to service connection for bilateral hand osteoarthritis, claimed as hand condition and pain. The June 2013 VA examiner diagnosed mild bilateral osteoarthritis and offered a negative etiological opinion based primarily upon the fact that, although current complaints and diagnoses were thumb-related, service treatment records discussed lesser finger involvement. The Board observes that a December 2018 VA clinical note states that the Veteran's arthritis and peripheral neuropathy of the bilateral hands was likely the result of diabetes mellitus or frostbite. The frostbite theory of entitlement was not addressed in the June 2013 VA medical opinion. Service connection is in effect for residuals of cold weather injury of the bilateral lower extremities. As there is an indication that the Veteran's bilateral hand disability may have the same etiology, a medical opinion regarding this theory of entitlement should also be obtained upon remand. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006); Barr, supra. 4. Entitlement to service connection for an acquired psychiatric disorder. The July 2013 VA examiner opined that it was at least as likely as not that the Veteran's diagnosed major depressive disorder was the result of pain. The examiner determined that lower back pain was the main complaint for causing depression, with a lesser relationship from knees, feet, and hips. It was explained that chronic pain was known to be a cause of depression. The August 2018 VA examiner diagnosed disruptive mood dysregulation disorder and opined that it was less likely than not that the mood disorder was proximately due to or the result of service-connected residuals of cold weather injury of the bilateral lower extremities. It was explained that, during the instant examination, the Veteran reported that his depressive symptoms and irritability were often brought on by his frustrations with others, as well as frustrations regarding his physical limitations. The VA examiner opined that the Veteran's back and hip pain appeared to be predominant, while the numbness and tingling of the feet appeared to be a minor issue in comparison. Based upon review of the Veteran's VA psychiatric treatment records, there was no evidence that the Veteran's current mental health symptoms were in any way related to his cold weather injury. However, the August 2018 VA examiner did not offer an opinion on aggravation, nor did she address the apparent discrepancy in her conclusion that there was no evidence that the Veteran's current mental health symptoms were in any related to his cold weather injury, while the July 2013 VA examiner opined that there was a lesser relationship between pain of the feet and the appellant's psychiatric symptoms. The July 2013 VA medical opinion suggests that the Veteran's service-connected residuals of cold weather injury of the bilateral lower extremities may have aggravated his current acquired psychiatric disability. As such, remand is warranted in order to obtain a new medical opinion which addresses aggravation. Barr, supra. This has not escaped the attention of the Veteran's attorney, who referenced this in the March 2020 brief. 5. Entitlement to a rating in excess of 20 percent for residuals of cold weather injury, right lower extremity. 6. Entitlement to a rating in excess of 20 percent for residuals of cold weather injury, left lower extremity. During the July 2021 hearing before the undersigned, the Veteran reported that his symptoms have worsened since his last examination in July 2018. Thus, the Board finds that the Veteran should be afforded a new examination to assess the severity and manifestations of his service-connected residuals of cold weather injury, bilateral lower extremities. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). 7. Entitlement to TDIU. As resolution of the claim of entitlement to ratings in excess of 20 percent residuals of cold weather injury, bilateral lower extremities, may have an impact on the Veteran's claim of entitlement to TDIU, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Undertake appropriate efforts to obtain outstanding VA medical records, including the results of audiological testing performed by VA clinicians. These results are stored separately and are not included in the CAPRI reports currently associated with the record on appeal. The Board is particularly interested in the January 2010 and April 2012 audiological testing, and any and all audiological examinations or consultations since December 2017. 2. Obtain a medical opinion from an appropriate clinician with regard to the nature and etiology of the Veteran's tinnitus. The claims file must be made available to the clinician rendering the requested opinion. Following review of the claims file, the clinician should provide an opinion, with supporting rationale, as to whether it is at least as likely as not that the Veteran's current tinnitus was incurred in service or is otherwise causally related to his active service or any incident therein, to include conceded military noise exposure. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In providing the requested opinions, the clinician should consider the Veteran's reported symptoms in service and thereafter, including the nature, onset, progression and severity of the Veteran's reported symptoms. If there is any medical reason to accept or reject the proposition that conceded military noise exposure caused or aggravated tinnitus, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how tinnitus is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If the clinician determines that an examination of the Veteran is necessary, one should be scheduled. 3. Obtain a medical opinion from an appropriate clinician as to the nature and etiology of the Veteran's bilateral hand disabilities. Access to the claims file should be made available to the examiner for review. After reviewing the claims file, the examiner should delineate all musculoskeletal and neurological right and left-hand disabilities. Then, for each identified disability, the examiner should opine as to the following: Is it at least as likely as not that each identified disability had its onset in service or is otherwise related to the appellant's active service, to include cold exposure and/or in-service knuckle pain? In providing the requested opinions, the clinician should review the relevant evidence of record, to include (a) the June 1980 service treatment record which notes possible arthritis to the knuckle area; (b) the December 2018 VA clinical note which states that the Veteran's arthritis and peripheral neuropathy of the bilateral hands was likely the result of diabetes mellitus or frostbite; and (c) the Veteran's July 2021 testimony that his hands and knuckles have bothered him since separation. The examiner is informed that service connection is in effect for residuals of cold weather injury of the bilateral lower extremities. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In providing the requested opinions, the clinician should consider the Veteran's reported symptoms in service and thereafter, including the nature, onset, progression and severity of the appellant's reported symptoms. If there is any medical reason to accept or reject the proposition that cold exposure and/or in-service knuckle pain caused or aggravated right or left-hand disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how right and left-hand disabilities are known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If the clinician determines that an examination of the Veteran is necessary, one should be scheduled. 4. Obtain a medical opinion from an appropriate clinician as to the nature and etiology of the Veteran's acquired psychiatric disorder. Access to the claims file should be made available to the examiner for review. After reviewing the claims file, the examiner should delineate all current acquired psychiatric disabilities, and then opine as to the following: Is it at least as likely as not that an acquired psychiatric disorder had its onset in service or is otherwise related to the Veteran's active service? If not, is it at least as likely as that an acquired psychiatric disorder was proximately due to or the result of service-connected residuals of cold weather injury, bilateral lower extremities? If neither, is it at least as likely as not that an acquired psychiatric disorder was aggravated (made worse) by residuals of cold weather injury, bilateral lower extremities? If aggravation is found, the examiner must attempt to establish a baseline level of severity prior to aggravation. In providing the requested opinions, the clinician should review the relevant evidence of record, to include (a) the July 2013 VA examination report and opinion which appears to suggest that service-connected residuals of cold weather injury, bilateral lower extremities may have aggravated an acquired psychiatric disorder, and (b) the August 2018 VA examination report and opinion. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In providing the requested opinions, the clinician should consider the Veteran's reported symptoms in service and thereafter, including the nature, onset, progression and severity of the appellant's reported symptoms. If there is any medical reason to accept or reject the proposition that service-connected residuals of cold weather injury, bilateral lower extremities caused or aggravated an acquired psychiatric disorder, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how an acquired psychiatric disorder is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If the clinician determines that an examination of the Veteran is necessary, one should be scheduled. 5. Schedule the Veteran for an examination conducted by an appropriate clinician to determine the severity and manifestations of his service-connected residuals of residuals of cold weather injury, bilateral lower extremities. Any indicated evaluations, studies, and tests should be conducted. The examination should be conducted in accordance with the current disability benefits questionnaire. All indicated testing, including, but not limited to, x-rays, range of motion studies, and neurologic tests, should be done, and all test findings should be reported in detail. All pertinent symptomatology and findings must be reported in detail. The examiner should describe the nature and severity of all current manifestations, both orthopedic and neurologic, of the Veteran's residuals of cold weather injury, bilateral lower extremities. The examiner should also comment upon the functional impact of the appellant's service-connected residuals of cold weather injury, bilateral lower extremities, with respect to his activities of daily living, to include his employability. 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Behlen, 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.