Citation Nr: 21074130 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 13-18 588A DATE: December 14, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus, including as secondary to bilateral hearing loss, is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity, secondary to service-connected diabetes mellitus, type II (DM) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1967 to November 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2012 rating decision of a Regional Office (RO) of the Department of. Veterans Affairs (VA). In May 2021, the Veteran testified at a hearing held before the undersigned. In August 2021, the Board remanded the claims for additional development. During the pendency of this appeal, an October 2021 rating decision granted service connection for left upper extremity radiculopathy and for a psychiatric disorder. This represents a complete grant of the benefit sought as to those claims. The issues of entitlement to service connection for left upper extremity peripheral neuropathy and entitlement to service connection for a psychiatric disorder are no longer in appellate status. 1. Entitlement to service connection for bilateral hearing loss is remanded. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21Vet. App.303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708F.3d1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Veteran seeks service connection for bilateral hearing loss. In May 2012, hearing loss for VA purposes was not confirmed during a VA hearing loss examination. See 38 C.F.R. § 3.385. In May 2021, the Veteran testified that his hearing acuity had worsened since this examination was provided. In October 2021, a second VA hearing loss examination confirmed bilateral hearing loss for VA purposes. The examiner observed in-service noise exposure was conceded because the Veteran's military occupational specialty (MOS) of rifleman had a high probability of hazardous noise exposure. He acknowledged the relationship between noise, auditory damage and hearing loss was "well documented." However, he opined there was "no evidence to support a nexus to relate current hearing loss to military noise [and] not another etiology." The examiner failed to provide a rationale for dismissing the "well documented" relationship between noise exposure and hearing loss or for attributing the Veteran's hearing loss to another cause. In addition, the service treatment records include audiograms from the Veteran's October 1967 entrance examination and November 1971 separation examination. These audiograms reflect a shift in audiometric thresholds over the Veteran's period of active service. The October 2021 examiner did not discuss these audiograms. The examiner did not consider the Veteran's full medical history and his opinion is not supported by a complete and cogent rationale. The examination and etiology opinions are inadequate to evaluate the claim. See Stefl, supra. 2. Entitlement to service connection for tinnitus, including as secondary to bilateral hearing loss, is remanded. Where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). In May 2021 and October 2021, VA examiners confirmed a diagnosis of tinnitus. They opined this condition was a symptom associated with the Veteran's hearing loss. The issue of entitlement to service connection for tinnitus is intertwined with the issue of entitlement to service connection for bilateral hearing loss. Id. 3. Entitlement to service connection for peripheral neuropathy of the right upper extremity, secondary to service-connected diabetes mellitus, type II (DM) is remanded. A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Recent case law holds that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability." Thus, a specific diagnosis is not required to establish service connection for symptoms that result in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); see also Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). The Veteran seeks entitlement to service connection for right upper extremity peripheral neuropathy secondary to his service-connected DM. In August 2021, the Board remanded the claim so that a VA examination and etiology opinion could be obtained. If a right upper extremity neurological condition was not diagnosed, the Board requested an opinion evaluating whether any functional impairment of earning capacity due to right upper extremity symptoms was secondary to DM. In October 2021, a VA peripheral nerve conditions examination was provided. The examiner did not diagnose right upper extremity neuropathy. As no condition was diagnosed, she opined a right upper extremity disability was less likely than not secondary to DM. The Board notes, the Veteran testified that he experienced tingling and numbness in his arms and the October 2021 examiner noted "[a]rms will go numb if he sleeps on his shoulders." These statements indicate right upper extremity symptomatology, which may have resulted in functional impairment of earning capacity, has been present over the appeal period. The October 2021 examiner did not opine as to whether any right upper extremity functional impairment of earning capacity is secondary to DM. The opinion does not provide the evaluation directed by the prior remand and it is insufficient to evaluate the claim. Id.; see also Stegall, supra. In addition, the most recent VA treatment records associated with the claims file are from May 2019. Prior to obtaining any additional examinations or etiology opinions, all outstanding VA treatment records must be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from May 2019 to the present. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's bilateral hearing loss is at least as likely as not related to conceded in-service noise exposure and/or any in-service shift in hearing acuity indicated by the October 1967 entrance audiogram and the November 1971 separation audiogram. The clinician must fully review the claims file, including the service treatment records. A complete rationale must be provided for all opinions expressed. Simply observing that a hearing loss disability was not noted during the Veteran's active service or at separation will be deemed an inadequate rationale for a negative etiology opinion. If the clinician attributes the current hearing loss disability to post-service noise exposure, or any other cause, rather than in-service noise exposure, he or she must provide a full rationale for this finding. The clinician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a rationale for doing so. If the clinician determines that an additional examination is necessary, schedule an examination. 3. Schedule the Veteran for a VA diabetic peripheral neuropathy examination to evaluate his claim for service connection for upper right extremity peripheral neuropathy. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is an upper right extremity neurological disability, to include peripheral neuropathy, at least as likely as not proximately due to or aggravated by DM? Please note that causation and aggravation are separate concepts and must be addressed individually. Aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, including reports of right arm or hand symptoms, he or she must provide a rationale for doing so. The examination report must include a complete rationale for the opinions provided M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.