Citation Nr: 21075259 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 19-13 100 DATE: December 20, 2021 REMANDED 1. Entitlement to service connection for gout is remanded. 2. Entitlement to service connection for residuals of pneumonia is remanded. 3. Entitlement to service connection for a bladder disorder is remanded. 4. Entitlement to service connection for a kidney disorder is remanded. 5. Entitlement to service connection for a right foot disorder is remanded. 6. Entitlement to service connection for a left foot disorder is remanded. 7. Entitlement to service connection for a bilateral knee disorder, previously claimed as arthritis, is remanded. 8. Entitlement to service connection for a bilateral shoulder disorder, previously claimed as arthritis, is remanded. 9. Entitlement to service connection for a bilateral ankle disorder, previously claimed as arthritis, is remanded. 10. Entitlement to service connection for bilateral hearing loss disability is remanded. 11. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1955 to October 1957. In September 2021, the Veteran provided testimony before the undersigned Veterans Law Judge (VLJ) during a Board hearing. A copy of the hearing transcript has been associated with the claims folder. During his September 2021 Board hearing, the Veteran clarified the issue on appeal of service connection for arthritis as involving the knees, ankles, and shoulders. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) clarified the scope of a claim on appeal by holding that when a claimant makes a claim, he/she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. The Court in Clemons held that that the scope of a disability claim includes any disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and other information of record. In light of this holding, and to ensure consideration of entitlement to service connection for each disability that may be reasonably be encompassed by the Veteran's description of his claim for arthritis, the Board has listed each disability as a separate issue. See also, Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009) (generally, the scope of a disability claim includes any disability that may reasonably be encompassed by a veteran's description of the claim, reported symptoms, and the other evidence of record). Also, during his Board hearing, the Veteran raised the issue of entitlement to service connection for residual of left little finger injury. To the extent that he seeks compensation for that condition, he is advised that he will need to submit an initial claim and VA requires claims to be submitted on a standard application form prescribed by the Secretary. See 38 C.F.R. §§ 3.1 (p), 3.155, 3.160. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Indeed, the Board expressly defers a credibility determination in this appeal until the development has been completed to the extent feasible. 1. Entitlement to service connection for residuals of pneumonia is remanded. 2. Entitlement to service connection for a bladder disorder is remanded. 3. Entitlement to service connection for a kidney disorder is remanded. 4. Entitlement to service connection for gout is remanded. 5. Entitlement to service connection for a right foot disorder is remanded. 6. Entitlement to service connection for a left foot disorder is remanded. 7. Entitlement to service connection for a bilateral knee disorder, previously claimed as arthritis is remanded. 8. Entitlement to service connection for a bilateral shoulder disorder, previously claimed as arthritis is remanded. 9. Entitlement to service connection for a bilateral ankle disorder, previously claimed as arthritis is remanded. 10. Entitlement to service connection for bilateral hearing loss disability is remanded. 11. Entitlement to service connection for tinnitus is remanded. Remanded Issues 1-11: The Veteran contends that all his claimed disorders on appeal are a result of his military service. See Form 9 (April 2019). To ensure that VA has met its duty to assist, remand is necessary to obtain outstanding VA and non-VA treatment records and to afford the Veteran with VA examinations. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). Initially, the Board notes that record reflects that attempts to secure the Veteran's service records were unsuccessful and that his service records could not be reconstructed, except for a single service personnel record. It has been determined that his federal department records were destroyed in a fire. See VA Memo (November 2011) and Correspondence (June 2018). When service records are lost or missing, VA has a heightened obligation to satisfy the duty to assist. Under these circumstances, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). First, a remand is needed to obtain outstanding VA and non-VA treatment records. See 38 C.F.R. § 3.159 (c); Sullivan v. McDonald, 815 F.3d 786 (2016) (holding that VA must obtain VA medical records sufficiently identified by the veteran regardless of the records' potential relevance). The Veteran testified that he has only received VA treatment since the 1990s. See Hearing Transcript (September 2021). He has identified treatment from VA medical facilities in West Palm Beach and Miami. See VA 21-526EZ, Fully Developed Claim (March 2018). The claims file contains some VA treatment records from West Palm Beach dated July 1997 to February 2012; however, these records are incomplete as there are large gaps in time between the documented VA treatment dates (e.g. from 1998 to 2004, from 2004 to 2008, and from 2008 to 2011) and subsequent VA treatment records note that medical problems were initially diagnosed during those missing years and there are histories showing VA medical procedures (e.g. left knee arthroscopy in June 1998 and renal surgery in January 2010). VA treatment records from Miami medical facility dated prior to September 2015 have also not yet been associated with his claims folder. In addition, during his Board hearing, the Veteran indicated that he had received non-VA treatment prior to 1990s for some of his claimed disabilities. Therefore, to ensure that VA has fully met its duty to assist, further development is necessary to obtain any outstanding treatment records the Veteran has identified. Next, the Board finds that VA examinations are necessary to adjudicate the Veteran's hearing, tinnitus, feet, and arthritis-related claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to his claimed hearing loss and tinnitus, the Veteran contends that he has hearing loss and tinnitus as a result of exposure to loud noises while performing his duties as an ammunition bearer for a 155mm howitzer artillery gun. No VA examination has been obtained in these matters. The Board finds that VA's duty to obtain an examination and opinion in these matters has been triggered as there is competent evidence of symptoms beginning and/or related to service. McLendon, supra. Here, the Veteran testified that he first experienced hearing loss and tinnitus during service, and he has continued to experience similar problems since service. See Hearing Transcript (September 2021). Although the available VA treatment records do not show current diagnoses of hearing loss or tinnitus, the Board observes that the Veteran is competent to attest to lay observable symptoms (e.g. diminished hearing and ringing in his ears). See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). With respect to his claims for service connection for feet disorder and arthritis in his knees, ankles, and shoulders, the Veteran contends that he developed arthritis in these joints as a result of wear and tear from performing his duties as an ammunition bearer on the 155mm howitzer artillery gun, where each round weighed 75 to 100 pounds, and required two men to it. He also believes that he developed arthritis in his joints as a result of sleeping on the ground during cold weather while he was stationed in Korea. See Hearing Transcript (September 2021). The Veteran has reported that he did not have any problems related to his feet, knees, ankles, and shoulders prior to his military service, and he reports that he first experienced pain and achy joints during his military service. The available VA treatment records show that the Veteran has been diagnosed with plantar fasciitis and mild degenerative changes in his right foot; he has also been assessment with general osteoarthrosis. See CAPRI (April 2019). Given the heightened duty to assist due to the unavailability of the Veteran's service treatment records, as well as the low bar set to trigger VA's duty to obtain a VA examination, the Board finds that the Veteran's lay statements regarding onset of symptoms involving his hearing loss, tinnitus, feet, knees, shoulders, and ankles as well as the physical nature of his military duties, is sufficient to trigger VA's duty to obtain an examination and opinion in these matters. See McLendon, 20 Vet. App. 79. Accordingly, the matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs, symptoms, and/or treatment involving his hearing, feet, shoulders, knees, ankles, lungs/respiratory system, kidney, and bladder. Make two requests for the authorized records from all identified sources unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's complete VA treatment records to include those from the West Palm Beach and Miami VA Medical Centers for the period from 1997 to the Present. 3. Schedule the Veteran for a VA examination to evaluate the nature and etiology of his claimed bilateral hearing loss and tinnitus. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed. The medical opinions should, at a minimum, reflect consideration of (i) the documented history; (ii) the lay contentions; and (iii) medical evidence of record. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). The examiner should address the following: (a.) Identify/diagnose any hearing loss and tinnitus that presently exists or that has existed since 2018. (b.) If hearing loss for VA purposes is diagnosed, is it at least as likely as not (50 percent probability or greater) that the disability had its onset in service, manifested within one year after service discharge, or is otherwise etiologically related to in-service injury, event, or disease? Consider the Veteran's theory that he has hearing loss and tinnitus due to loud noise exposure in service (e.g. ammunition bearer for a 155mm howitzer artillery gun). (c.) Is it at least as likely as not (50 percent probability or greater) that tinnitus had its onset in service, manifested within one year after service discharge, or is otherwise etiologically related to in-service injury, event, or disease? Consider the Veteran's theory that he has hearing loss and tinnitus due to loud noise exposure in service (e.g. ammunition bearer for a 155mm howitzer artillery gun). 4. Schedule an examination from an appropriate clinician to address the onset and etiology of the Veteran's claimed feet, knees, ankles, and shoulders disorders. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed. The medical opinions should, at a minimum, reflect consideration of (i) the documented history; (ii) the lay contentions; and (iii) medical evidence of record. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). The examiner should address the following: (a.) Identify/diagnose all current disabilities of the feet, ankles, knees, and shoulders that presently exists or that has existed since 2018. (b.) As to each diagnosed disability (foot, ankle, knee, and shoulder), whether it at least as likely as not (50 percent probability or greater) that the disability began in service, or is otherwise related to in-service injury or event, to include wear and tear from performing physical activities and sleeping on the ground during military service? Explain. (c.) As to any diagnosed arthritis, whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Explain. 5. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M., 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.