Citation Nr: 21005861 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 20-02 914 DATE: February 2, 2021 REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left foot disability, to include callouses and to include as due to a service connected disability is remanded. Entitlement to service connection for a right foot disability, to include callouses and to include as due to a service connected disability is remanded. Entitlement to service connection for a left foot disability to include bunions and to include as due to a service connected disability, is remanded. Entitlement to service connection for a right foot disability, to include bunions and to include as due to a service connected disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from April 1962 to April 1965. These matters come before the Board of Veterans’ Appeals (Board) from a July 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans’ Law Judge at a Board virtual hearing in November 2020. A transcript of the hearing has been associated with the claims file. 1. Entitlement to service connection for a bilateral hearing loss disability 2. Entitlement to service connection for tinnitus 3. Entitlement to service connection for a low back disability 4. Entitlement to service connection for a left foot disability, to include callouses and to include as due to a service connected disability 5. Entitlement to service connection for a right foot disability, to include callouses and to include as due to a service connected disability 6. Entitlement to service connection for a left foot disability to include bunions and to include as due to a service connected disability 7. Entitlement to service connection for a right foot disability, to include bunions and to include as due to a service connected disability 8. Entitlement to service connection for a right hip disability 9. Entitlement to service connection for a left knee disability First, as an initial matter and relevant to all the claims on appeal at the November 2020 hearing the Veteran identified potentially relevant outstanding treatment records. At the November 2020 hearing the Veteran reported that he has continued to undergo periodic treatment through VA. Any VA treatment records are within VA’s constructive possession and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. Next, during the November 2020 hearing the Veteran identified potentially relevant outstanding private treatment records. The Veteran testified to relevant and recent ongoing private treatment through Mayo Clinic. Private treatment records from June 2018 forward have not been associated with the claims file. A remand is required to allow VA to obtain authorization and request these records. Hearing Loss and Tinnitus The Veteran contends that service connection is warranted for a bilateral hearing loss disability and for tinnitus as due to his in-service noise exposure. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for a bilateral hearing loss disability and service connection for tinnitus because no VA examiner has fully opined as to direct and presumptive service connection. The VA examiner in May 2018 found that a significant shift in thresholds from enlistment to separation was unlikely based on the analysis of the separation exam. The examiner noted that medical literature suggests that the most pronounced effects of noise exposure on pure-tone thresholds are measurable immediately following exposure. The examiner noted the likelihood of hazardous noise exposure in-service and found that it is less likely than that his current hearing loss and tinnitus was caused by or the result of an event in-service. However, the VA examiner failed to fully consider the Veteran’s and associated lay statements. In November 2020 the Veteran and his wife testified to ongoing difficulty hearing since his separation from service and that this associated symptomology has worsened over time. The Veteran reports hazardous noise exposure in-service, and no hazardous noise exposure post-service. In addition, the Veteran’s representative referenced medical literature from the American Hearing and Research Foundation suggesting that noise exposure can damage hearing and manifest with a delayed onset of such hearing loss but did not submit specific literature. As to tinnitus the Veteran testified to buzzing and ringing in his ears occurring two to three times a month for several minutes. The Veteran testified that his tinnitus began more than 20 years ago. A supplemental opinion should fully address direct and presumptive service connection. The Board finds that hazardous noise exposure is conceded as it is consistent with the Veteran’s service as a weapons infantryman. As such a remand is warranted for a supplemental VA examination. Low back Further, the Veteran contends that service connection is warranted for a low back disability. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a low back disability because no VA examiner has fully opined as to direct and presumptive service connection. The VA examination in May 2018 found that it is less likely than not that the Veteran’s current low back disability was incurred in or caused by service attributing the Veteran’s low back arthritis to aging. However, the examiner failed to fully consider the Veteran’s and associated lay statements reporting ongoing low back symptomology and address presumptive service connection. In November 2020 the Veteran testified to participating in over 20 parachute jumps in-service as well as Ranger training which he contends resulted in his ongoing back pain and symptomology. Further, the Veteran and his wife testified to ongoing low back pain and soreness which began soon after service with ongoing symptomology since service. As such a remand is warranted for a supplemental VA opinion. Left foot callouses and right foot callouses Left foot bunions and right foot bunions In addition, the Veteran contends that service connection is warranted for left foot callouses and right foot callouses to include as due to a service connected disability. In addition, the Veteran also contends that service connection is warranted for left foot bunions and right foot bunions and to include as due to a service connection disability. The Veteran reports that his current foot disabilities are caused by his low back disability. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for right and left foot disabilities including bunions and callouses because no VA examiner has fully opined as to direct and presumptive service connection. The VA examiner in May 2018 found that it is less likely than not that the Veteran’s right and left foot bunions and callouses are proximately due to or the result of his back, left knee and right hip. However, the VA examiner failed to fully consider the Veteran’s and associated lay statements regarding in-service events and ongoing symptomology. The Veteran and his wife testified in November 2020 that he has had difficulty and pain with his toes since service, which the Veteran attributes to long marches, parachute jumps and the rigors of Ranger school. The Veteran and his representative contend that his ongoing foot symptomology is attributed to footwear in-service. As such a remand is warranted for a supplemental VA examination. Right hip The Veteran contends that service connection is warranted for a right hip disability. The Veteran was afforded a VA examination in May 2018. The examiner noted that the Veteran does not have a current diagnosis related to his right hip. The Veteran has reported ongoing right hip pain which impacts his ability to walk and use his hip. The U.S. Court of Appeals for the Federal Circuit recently found 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,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Saunders v. Wilkie, 886 F.3d 1356, 136768 (Fed. Cir. 2018). In light of Saunders v. Wilkie, a remand is needed as pain alone can serve as a functional impairment and therefore qualify as a disability. The Board cannot make a fully informed decision on the issue of entitlement to service connection for a right hip disability because no VA examiner has fully opined to whether the Veteran has a current disability. In November 2020 the Veteran and his wife testified that he continues to experience ongoing right hip pain. The Veteran and his wife reported that he has experienced ongoing symptomology of right hip pain since service. The Veteran reports his right hip pain requires him to rest and he believes such is related to service including his parachute jumps in-service as well as Ranger training. As such a remand is warranted for a supplemental VA opinion. Left knee The Veteran contends that service connection is warranted for a left knee disability. The Board cannot make a fully informed decision on the issue of entitlement to service connection for a left knee disability because no VA examiner has fully opined as to direct and presumptive service connection. The VA examination in May 2018 found that it is less likely than not that the Veteran’s current left knee disability was incurred in or caused by the claim in-service injury, event or illness noting his current left knee disability is most likely due to aging and surgery. However, the VA examiner failed to fully consider the Veteran’s and associated lay statements. In November 2020 the Veteran testified to participating in over 20 parachute jumps in-service as well as Ranger training which he contends resulted in his ongoing left knee pain and symptomology. The Veteran and his wife testified that the Veteran has been experiencing ongoing left knee pain and symptomology since shortly after service which has worsened over time. As such a remand is warranted for a supplemental VA examination. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from July 2019 forward. 2. Ask the Veteran to complete a VA Form 21-4142 for the Mayo Clinic for treatment records from June 2018 forward. Make two requests for the authorized records from Mayo Clinic unless it is clear after the first request that a second request would be futile. 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s bilateral hearing loss disability and tinnitus and whether: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current bilateral hearing loss disability is caused by an in-service injury, event or disease, including in-service noise exposure? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s bilateral hearing loss (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomology since service? (c.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current tinnitus is caused by an in-service injury, event or disease, including in-service noise exposure? (d.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s tinnitus (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomology since service? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the VA examination in May 2018 noting that a significant shift in thresholds from enlistment to separation was unlikely based on the analysis of the separation exam. The examiner noted that medical literature suggests that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following exposure. The examiner noted the likelihood of hazardous noise exposure in-service and found that it is less likely than not caused by or the result of an event in-service. Further, attention is invited to the Veteran’s and his wife’s statements and November 2020 testimony noting the Veteran has had difficulty hearing since she met him which was directly after service. The Veteran and his wife testified to ongoing difficulty hearing since his separation from service and that this associated symptomology has worsened over time. The Veteran reports hazardous noise exposure in-service, and no hazardous noise exposure post-service. In addition, the Veteran’s representative referenced medical literature from the American Hearing and Research Foundation suggesting that noise exposure can damage hearing and manifest with a delayed onset of such hearing loss but did not submit specific literature. The Board finds that hazardous noise exposure should be conceded. As to tinnitus the Veteran testified to buzzing and ringing in his ears that occurs two to three times a month for several minutes. The Veteran testified that his tinnitus began more than 20 years ago. 3. Obtain an addendum opinion from an appropriate clinical regarding the Veteran’s low back, feet, right hip and left knee and whether: Low back (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current low back arthritis is caused by an in-service injury, event or disease, including performing over 20 parachute jumps and Ranger training? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s low back arthritis (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomology since service? Right and left foot (c.) Identify all current right and left foot disabilities. (d.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current right and left foot disabilities including bunions and callouses are caused by an in-service injury, event or disease, including performing over 20 parachute jumps and Ranger training? (e.) If arthritis is found, is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s right and left foot arthritis (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomology since service? Only if the Veteran’s low back, left knee or right hip disability is found to be related to service then: (f.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s right and left foot disabilities were caused by his low back, hip or knee disabilities? (g.) Is it at least as likely as not (a 50 percent probability or greater) that he Veteran’s right and left foot disabilities were aggravated (permanently worsened beyond its natural progression) by his back, right hip or left knee disabilities? Right hip (h.) Identify any current right hip disabilities. The examiner should address whether pain results in functional impairment and therefore qualifies as a disability if warranted. (i.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current right hip disability is caused by an in-service injury, event or disease, including performing over 20 parachute jumps and Ranger training? (j.) If arthritis is found, is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s right hip arthritis (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomology since service? Left knee (k.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current left knee disability is caused by an in-service injury, event or disease, including performing over 20 parachute jumps and ranger training? (l.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s left knee arthritis (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomology since service? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the VA examination in May 2018 noting that it is less likely than not that the Veteran’s current low back disability was incurred in or caused by service attributing the Veteran’s degenerative disc disease to aging. As well as the Veteran’s testimony and lay statements in November 2020 the Veteran testified to participating in over 20 parachute jumps in-service as well as Ranger training which he contends resulted in his ongoing back pain and symptomology. Further, the Veteran and his wife testified to ongoing low back pain and soreness which began soon after service with ongoing symptomology since service. Then attention is also invited to the May 2018 examination which found that it is less likely than not that the Veteran’s right and left foot bunions and callouses are proximately due to or the result of his back, left knee and right hip. The Veteran and his wife testified in November 2020 that he has had difficulty and pain with his toes since service, which the Veteran attributes to long marches, parachute jumps and rigors of Ranger school. The Veteran and his representative contend that his ongoing foot symptomology is attributed to footwear in-service. Also, attention is invited to the examination in May 2018, the examiner noted that the Veteran does not have a current diagnosis related to his right hip. The Veteran has reported ongoing right hip pain which impacts his ability to walk and use his hip. In November 2020 the Veteran and his wife testified that he has experienced ongoing symptomology of right hip pain since service. The Veteran reports at times his right hip pain requires him to rest and he believes such is related to service including his parachute jumps in-service as well as Ranger training. Lastly, the VA examination in May 2018 found that it is less likely than not that the Veteran’s current left knee disability was incurred in or caused by the claim in-service injury, event or illness noting his current left knee disability is most likely due to aging and surgery. In November 2020 the Veteran testified to participating in over 20 parachute jumps in-service as well as Ranger training which he contends resulted in his ongoing left knee pain and symptomology. The Veteran and his wife testified that the Veteran has been experiencing ongoing left knee pain and symptomology since shortly after service which has worsened over time. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.