Citation Nr: 21075824 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-07 797 DATE: December 21, 2021 ORDER Entitlement to a disability evaluation in excess of 10 percent for tinnitus is dismissed. The appeal to reopen a previously-denied claim of entitlement to service connection for frostbite residuals of the bilateral feet based on the receipt of new and material evidence is granted. The appeal to reopen a previously-denied claim of entitlement to service connection for a dental condition based on the receipt of new and material evidence is granted. Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to service connection for bilateral vision loss, claimed as secondary to a TBI, is remanded. Entitlement to service connection for a cerebellum condition, claimed as secondary to a TBI, is remanded. Entitlement to service connection for a right leg condition, claimed as secondary to a TBI, is remanded. Entitlement to service connection for a left leg condition, claimed as secondary to a TBI, is remanded. Entitlement to service connection for a speech condition, claimed as secondary to a TBI, is remanded. Entitlement to service connection for a dental condition is remanded. Entitlement to service connection for frostbite residuals of the bilateral feet is remanded. FINDINGS OF FACT 1. At his August 2021 Board virtual hearing, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of the appeal as to the issue of entitlement to an increased disability evaluation for tinnitus. 2. The claims of entitlement to service connection for frostbite residuals of the bilateral feet and a dental condition were originally denied in an August 2004 Rating Decision; no material evidence was received within one year of the decision and the Veteran did not appeal the decision, which became final. 3. Subsequent to the August 2004 final decision, new and material evidence was received to reopen the previously denied claim of entitlement to service connection for frostbite residuals of the bilateral feet. 4. Subsequent to the August 2004 final decision, new and material evidence was received to reopen the previously denied claim of entitlement to service connection for a dental condition. 5. The evidence is at least in relative equipoise as to whether the Veteran's current bilateral hearing loss is related to noise exposure during active duty. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran's appeal as to the issue of entitlement to an increased disability evaluation for tinnitus by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The August 2004 Rating Decision which denied the Veteran's claims of entitlement to service connection for frostbite residuals of the bilateral feet and a dental condition is final. 38. C.F.R. §§ 3.104, 20.302, 20.1103. 3. The criteria to reopen the previously-denied claim of entitlement to service connection for frostbite residuals of the bilateral feet have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 3.159. 4. The criteria to reopen the previously-denied claim of entitlement to service connection for a dental condition have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 3.159. 5. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to March 1988. These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2014 Rating Decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2021, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. § §§ 3.102, 3.156(a), 3.159, 3.326(a) (2019). Here, neither the Veteran nor his attorney have raised any issues with regard to the duty to notify or duty to assist in relation to the matters adjudicated herein. See Scott v. McDonald, 789 F.3d 1375, 1381(Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Withdrawn Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55 (a). The withdrawal should be filed with the Board and must include the name of the veteran, the applicable VA file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, then the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. 38 C.F.R. § 19.55 (b)(1). Withdrawals are effective when received by the Board if a decision has not been promulgated. 38 C.F.R. § 19.55 (b)(3). Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement as to all issues to which the withdrawal applies. 38 C.F.R. § 19.55(c). In this case, prior to the promulgation of a decision in the appeal, the Veteran indicated at his August 2021 Board virtual hearing that he wished to withdraw his claim of entitlement to an increased disability evaluation for tinnitus. The Veteran's withdrawal was explicit, unambiguous (as the Veteran expressed agreement with the withdrawal of the identified issue), and was done with a full understanding of the consequences of such action, as he was acting on the advice of his attorney. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Hence, the Board finds that the Veteran's statement satisfies the requirements of a withdrawal as to this issue and that there remain no allegations of errors of fact or law for appellate consideration. 38 C.F.R. § 19.55. Accordingly, the Board does not have jurisdiction to review the appeal and the issue of entitlement to an increased disability evaluation for tinnitus is dismissed. New and Material Evidence Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what new and material evidence is, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the Veteran initially filed claims of entitlement to service connection for frostbite residuals of the bilateral feet and a dental condition in April 2004. In an August 2004 Rating Decision, the RO denied those claims. The claim of entitlement to service connection for frostbite residuals of the bilateral feet was denied on the basis that there was no evidence of frostbite residuals in the Veteran's available service treatment records or VA treatment records. The claim of entitlement to service connection for a dental condition was denied on the basis that there was no evidence a dental condition resulting from another service-connected disability or due to combat wounds or other service trauma, or based on Prisoner of War status of less than 90 days. The Veteran was notified of this decision in August 2004. The Veteran did not file an appeal for these claims, nor was new and material evidence received during the appeal period; thus the decision became final. 38 C.F.R. §§ 3.104, 20.302, 20.1103. Subsequent to the August 2004 final decision, the Veteran provided additional testimony at his August 2021 Board hearing. With respect to his alleged frostbite residuals, the Veteran testified that he was assigned to 30 days of joint training exercises in Korea while he was stationed in Hawaii, during which time he was afflicted by frostbite. The Veteran further testified that he sought treatment for the frostbite residuals in service, and that this treatment would be documented in his service treatment records if they were available. He also indicated that he still experienced foot symptomatology related to the frostbite, although he did not seek treatment for it because he was focused on his cerebellum symptoms. With respect to his dental condition, the Veteran testified that he was involved in a motor vehicle accident while on his way to his base while stationed in Hawaii in 1982, at which time he suffered brain trauma and a broken jaw when his head hit the steering wheel. He further testified that he was hospitalized at Tripler Army Medical Center in Honolulu, Hawaii, for a period of approximately 10 days thereafter, during which time his jaw was wired shut. The Veteran's testimony, presumed to be credible, suggests that he sustained frostbite while in service and a broken jaw due to in-service trauma. The Board notes that the Veteran is competent to describe an accident and any symptoms related to an injury. Indeed, a veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disability is not a determination "medical in nature" and is capable of lay observation). In this regard, the Veteran has been found credible by the Board regarding his complaints of exposure to cold temperatures resulting in bilateral foot pain as well as sustaining dental trauma during service. Thus, due consideration should be given to the lay testimony provided by the Veteran regarding the origin and progression of these conditions. As this evidence is new and material to the bases for the prior final denials, the claims of entitlement to service connection for frostbite residuals of the bilateral feet and a dental condition may now be reopened on that basis and reviewed on the merits de novo. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156. The claims are further addressed in the Remand section below. Service Connection for Bilateral Hearing Loss The Veteran also seeks entitlement to service connection for bilateral hearing loss. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as bilateral hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The threshold for normal hearing is from zero to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Here, the Veteran asserts that he has bilateral hearing loss as a result of acoustic trauma during active duty. Specifically, he alleged that he suffers from current hearing loss as a result of exposure to in-service acoustic trauma in the form of machine guns, handheld weapons, tanks, explosions, grenades, and mortars. His service personnel records reflect that his military occupational specialty was Army Indirect Fire Infantryman. As such, acoustic trauma has been conceded. At his August 2021 Board hearing, the Veteran's sister testified that the Veteran experienced hearing loss following his separation from military service in 1988, although he was not fully aware of it at the time. The Veteran was provided with a VA audiological examination in August 2014, at which time he was diagnosed as having bilateral sensorineural hearing loss. For the purposes of applying the laws administered by VA, these August 2014 examination results demonstrated a hearing loss disability in the bilateral ears. However, the August 2014 VA audiologist opined that the Veteran's claimed hearing loss was less likely as not caused by or a result of military service. In support of this conclusion, the VA audiologist explained that: Veteran's service medical records showed he was released from the service with normal hearing sensitivity in both ears. Records showed no hearing loss or significant changes in hearing thresholds greater than normal measurement variability during military service. There was no record of complaint or treatment of the claimed condition in service records. The Institute of Medicine (2006) stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was "unlikely". The record reflects diagnoses of sensorineural hearing loss during the pendency of the appeal. Additionally, the Veteran reported experiencing hearing loss since service, although he did not recognize it as a disability until later in life. Such lay testimony is competent to establish the presence of observable symptomatology. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The presence of hearing loss is readily identifiable by its features and, thus, is capable of lay observation by the Veteran. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). As such, the Board finds the Veteran has established a current disability of sensorineural hearing loss for service connection purposes. With respect to an in-service injury, event, or illness, VA has conceded exposure to excessive noise. The Veteran's descriptions of his noise exposure are consistent with his circumstances of service and are competent and credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection). The Veteran is credible to give evidence about what he has experienced. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds the Veteran has established an in-service event for sensorineural hearing loss for the purposes of service connection. With evidence of a current disability and an in-service event or injury, the remaining element required to establish service connection is a nexus between the current disability and the in-service event or injury. The Veteran is competent and credible to report the symptoms of his hearing loss. See Layno, 6 Vet. App. at 469. A veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a) ("Each disabling condition shown by a veteran's service records, or for which he seeks a service connection[,] must be considered on the basis of . . . all pertinent medical and lay evidence."); 38 U.S.C.A. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). In this case, the Board finds it pertinent that hearing loss is considered an organic disease of the nervous system for VA purposes and, as such, is a condition explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015). As a result, the Veteran's statements regarding continuity of symptomatology may be sufficient for purposes of establishing service connection. With respect to the negative nexus opinion provided by the August 2014 VA audiologist, the Board affords it little probative value. The audiologist based her negative nexus opinion on normal hearing sensitivity in both ears at the time of his separation from service, in addition to a lack of evidence of hearing loss or significant changes in hearing thresholds greater than normal measurement variability during military service. However, the Board emphasizes that the absence of an in-service hearing loss disability is not fatal to the claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Furthermore, evidence of a current hearing loss disability and medically sound basis for attributing that disability to service may serve as a basis for the grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meet the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Here, the audiologist's conclusions are particularly problematic given that the only available service treatment record was the Veteran's separation examination, thus rendering it impossible to conclude whether a threshold shift occurred in service. Here, the Board finds nothing in the record that would refute the competency and credibility of the Veteran's assertions regarding his hearing loss symptoms. The Board finds the Veteran has consistently and credibly asserted that he began experiencing hearing loss in service or shortly thereafter. Therefore, the Board finds the Veteran's statements concerning experiencing hearing loss since his in-service noise exposure to be competent and credible evidence of continuity of symptomatology for service connection purposes. Resolving the benefit of the doubt in favor of the Veteran, the Board finds the evidence is at least in relative equipoise as to whether bilateral hearing loss is related to in-service noise exposure. As such, service connection for bilateral hearing loss is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran seeks entitlement to service connection for a back condition, a TBI, bilateral vision loss, a cerebellum condition, a right leg condition, a left leg condition, a speech condition, a dental condition, and frostbite residuals of the bilateral feet. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. At the outset, the Board acknowledges that all of the Veteran's service treatment records have not been associated with the claims file. Indeed, the only service treatment records associated with the claims file appear to be the Veteran's December 1987 Report of Medical Examination at separation and the corresponding December 1987 Report of Medical History. The record reflects that the RO attempted to obtain service treatment records from the Records Management Center in May 2013, and again from the National Archives and Records Administration in January 2014. In May 2014, the RO issued the Veteran correspondence determining that his service treatment records could not be located and therefore were unavailable for review, that all efforts to obtain the needed information had been exhausted, and that further attempts to obtain the records would be unsuccessful. The Board emphasizes that due to the unavailability of the Veteran's service treatment records, VA has a heightened duty to consider the applicability of the benefit of the doubt rule and to assist the Veteran in developing his claims, including advising him to submit alternative forms of evidence to support his claim, such as buddy statements or other lay statements, and assisting him in obtaining sufficient evidence from alternative sources. See Washington v. Nicholson, 19 Vet. App. 362, 369-71 (2005). To that end, with respect to all claims, the Veteran testified that he was involved in an in-service motor vehicle accident in 1982, after which time he underwent surgery and was hospitalized at Tripler Army Medical Center in Honolulu, Hawaii, for approximately 10 days. On remand, the RO should attempt to obtain the Veteran's 1982 in-patient treatment records from Tripler Army Medical Center and associate them with the claims file. 38 C.F.R. § 3.159(c). Additionally, a review of the record reflects that the RO last associated the Veteran's VA treatment records with the claims file in February 2017, over four years ago. Although the Veteran submitted his own copies of treatment records from the Miami VA Healthcare System in Miami, Florida, as recently as June 2021, it is not clear that this constitutes all of the Veteran's VA treatment records since February 2017. VA treatment records, even if not in the claims file, are nevertheless considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C. § 5103A (b) (West 2014); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Here, as the record suggests the existence of outstanding VA treatment records which have not yet been associated with the claims file, the Board finds that the RO must associate with the record any and all outstanding VA treatment records dated from February 2017 to the present from the Miami VA Healthcare System. 1. Entitlement to service connection for a TBI, bilateral vision loss, a cerebellum condition, a right leg condition, a left leg condition, and a speech condition The Veteran seeks entitlement to service connection for a TBI as well as several conditions which he asserts are secondary to the TBI, to include a cerebellum condition, bilateral vision loss, a speech condition, and bilateral leg conditions (due to loss of balance). At his August 2021 Board hearing, the Veteran testified that his TBI occurred as a result of an in-service motor vehicle accident in 1982 in which he lost consciousness after hitting his head on the steering wheel. He further testified that he received in-patient treatment at Tripler Army Medical Center for approximately 10 days thereafter, and was informed that he sustained brain trauma. The Veteran's VA treatment records show treatment for cerebellar ataxia (suspected to be alcoholic cerebellar degeneration) with associated balance, gait, and coordination problems. The Veteran has not yet been afforded an examination regarding his alleged TBI and associated residuals. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Considering VA's heightened duty to assist the Veteran in developing his claims, the Board finds that a VA examination should be obtained to ascertain the likely natures and etiologies of his alleged TBI and associated residuals. 2. Entitlement to service connection for a dental condition The Veteran also seeks entitlement to service connection for a dental condition. At his August 2021 Board hearing, the Veteran testified that he sustained severe dental trauma as a result of the 1982 motor vehicle accident, and that he subsequently had his jaw wired shut, had teeth removed, and was prescribed dentures while still in service. The Veteran has not yet been afforded an examination regarding his alleged dental condition. See McLendon, supra. Considering VA's heightened duty to assist the Veteran in developing his claim, the Board finds that a VA examination should be obtained to ascertain the likely nature and etiology of his alleged dental condition. 3. Entitlement to service connection for a back condition The Veteran also seeks entitlement to service connection for a back condition. At his August 2021 Board hearing, the Veteran testified that he injured his back in service as a result of lifting the heavy baseplates of M30 mortar weaponry in his capacity as an Army Indirect Fire Infantryman while stationed in Hawaii. He further testified that he went to sick call for treatment of back symptoms while in service. Alternatively, the Veteran testified that his current back symptoms were caused and/or aggravated by the altered gait caused by balance issues related to his alleged TBI residuals and cerebellum condition. The Veteran indicated that he has difficulty sitting down as a result of his current back symptomatology. The Veteran has not yet been afforded an examination regarding his alleged back condition. See McLendon, supra. Considering VA's heightened duty to assist the Veteran in developing his claim, the Board finds that a VA examination should be obtained to ascertain the likely nature and etiology of his alleged back condition. 4. Entitlement to service connection for frostbite residuals of the bilateral feet The Veteran also seeks entitlement to service connection for frostbite residuals of the bilateral feet. At his August 2021 Board hearing, the Veteran testified that he was assigned to 30 days of joint training exercises in Korea while he was stationed in Hawaii, during which time he was afflicted by frostbite. The Veteran further testified that he sought treatment for the frostbite residuals in service, and that this treatment would be documented in his service treatment records if they were available. He also indicated that he still experienced foot symptomatology related to the frostbite, although he did not seek treatment for it because he was focused on his cerebellum symptoms. The Veteran has not yet been afforded an examination regarding his alleged frostbite residuals. See McLendon, supra. Considering VA's heightened duty to assist the Veteran in developing his claim, the Board finds that a VA examination should be obtained to ascertain the likely nature and etiology of his alleged frostbite residuals. The matters are REMANDED for the following action: 1. Request the Veteran's 1982 in-patient treatment records from Tripler Army Medical Center in Honolulu, Hawaii, and associate them with the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, then issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran and his attorney must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain all outstanding VA treatment records dated from February 2017 to the present from the Miami VA Healthcare System in Miami, Florida, including all associated outpatient clinics. All attempts to obtain these records must be documented in the claims file. The Veteran and his attorney must be notified of any inability to obtain the requested documents. 3. After the above development has been completed, schedule the Veteran for a VA examination to determine the likely natures and etiologies of his alleged TBI and any associated residuals, to include a cerebellum condition, bilateral vision loss, a speech condition, and bilateral leg conditions (due to loss of balance). Upon physical examination of the Veteran and thorough review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed TBI and/or associated residuals had their onset in service or are otherwise related to his active duty service, to include his 1982 motor vehicle accident. The examiner must provide a fully articulated medical rationale for each opinion, citing to peer-reviewed medical literature referenced in formulating it, if any. If the examiner finds that an opinion cannot be provided, then this conclusion should also be clearly explained (e.g., due to lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, then he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. 4. Schedule the Veteran for a VA examination to determine the likely nature and etiology of his alleged dental condition. Upon physical examination of the Veteran and thorough review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed dental condition had its onset in service or is otherwise related to his active duty service, to include his 1982 motor vehicle accident and any dental trauma sustained therein. The examiner must provide a fully articulated medical rationale for each opinion, citing to peer-reviewed medical literature referenced in formulating it, if any. If the examiner finds that an opinion cannot be provided, then this conclusion should also be clearly explained (e.g., due to lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, then he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. 5. Schedule the Veteran for a VA examination to determine the likely nature and etiology of his alleged back condition. Upon physical examination of the Veteran and thorough review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed back condition had its onset in service or is otherwise related to his active duty service, to include his reports of experiencing back symptomatology after lifting the heavy baseplates of M30 mortar weaponry in his capacity as an Army Indirect Fire Infantryman while stationed in Hawaii. If the examiner provides a negative nexus opinion to the above inquiry, then he or she is also asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed back condition was caused or aggravated by a TBI and/or associated residuals, to include any altered gait caused by balance issues. The examiner must provide a fully articulated medical rationale for each opinion, citing to peer-reviewed medical literature referenced in formulating it, if any. If the examiner finds that an opinion cannot be provided, then this conclusion should also be clearly explained (e.g., due to lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, then he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. 6. Schedule the Veteran for a VA examination to determine the likely nature and etiology of his alleged frostbite residuals of the bilateral feet. Upon physical examination of the Veteran and thorough review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed frostbite residuals had their onset in service or are otherwise related to his active duty service, to include his alleged participation in joint training exercises in Korea. The examiner must provide a fully articulated medical rationale for each opinion, citing to peer-reviewed medical literature referenced in formulating it, if any. If the examiner finds that an opinion cannot be provided, then this conclusion should also be clearly explained (e.g., due to lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, then he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. 7. Thereafter, review the claims file to ensure that all of the foregoing requested development has been completed, and arrange for any additional development indicated, then readjudicate the claims on appeal. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.