Citation Nr: 21006813 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 18-05 700 DATE: February 5, 2021 REMANDED The issue of entitlement to service connection for a bilateral lower extremity disorder, characterized as a left ankle condition is remanded. The issue of entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran had active service from September 1963 to September 1965. The Board has recharacterized the issue of entitlement to service connection for bilateral ankle disability to more broadly encompass entitlement to service connection for a bilateral lower extremity disability. The law provides that VA must broadly consider claims and when a Veteran asserts service connection, he does so for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may satisfy the requirement to identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). After reviewing the contentions and evidence, the Board determines that the issue of entitlement to service connection for a bilateral ankle disability should be recharacterized and is more accurately stated as listed on the title page of this decision. Pursuant to a joint motion for remand (JMR) filed by VA and the Veteran, in September 2020 the Court of Appeals for Veterans Claims (CAVC) vacated the Board’s August 2019 decision and remanded it to the Board for compliance with its instructions. Before the CAVC, the parties agreed that the Board did not satisfy its duty to assist to obtain records, did not discuss whether the Veteran’s bilateral ankle pain complaints constituted a disability based on functional impairment, and did not address the Veteran’s lay statements regarding the onset of intermittent tinnitus during service. Pursuant to the JMR, the matter is remanded for further development. 1. Entitlement to service connection for a bilateral lower extremity condition is remanded. 2. Entitlement to service connection for tinnitus is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR RO ADJUDICATOR: This is a remand based on the Court’s vacatur and remand instructions. 2. Request the Veteran identify and secure any relevant private medical records that are not in the claims file, to include from The Hip Center (also known as Advantage) and any other provider that treated his bilateral ankles and/or tinnitus disabilities. If the Veteran identifies private records, following the securing of the appropriate waivers, make all appropriate attempts to locate such records and to associate them with the claims file. If the Veteran has no further evidence to submit, or, if after exhaustive efforts have been made, no records can be identified, so annotate the record. 3. Schedule the Veteran for an appropriate VA examination, consistent with VA rating protocols, to determine the nature and etiology of any current bilateral lower extremity disability, to include a circulation disorder. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. An explanation should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: a) Does the Veteran demonstrate clinical findings of a current left and/or right lower extremity condition? b) If the Veteran does not demonstrate clinical findings of a left and/or right lower extremity condition, does the Veteran demonstrate left and/or right lower extremity pain that results in functional impairment? If so, the examiner must describe the functional impairment on activities of daily living, to include occupational impairment. c) Were any of the Veteran’s current bilateral lower extremity diagnoses or functional impairment incurred in service or caused by an in-service injury, event or illness? The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED BECAUSE OF THIS REMAND, the VA examiner’s attention is drawn to the following: * The September 1965 separation report of medical history indicates the Veteran endorsed swollen or painful joints. The accompanying notation indicates the Veteran complained of recurrent shoulder pain. His September 1965 separation examination indicated clinically normal musculoskeletal and feet evaluations. See “STR – Medical,” received January 4, 2017. * In an April 2017 statement the Veteran reported that his boots were too small for his feet and that he subsequently endured leg, ankle and feet pain during service due to his small boots. He also reported that when he complained about his small boots he was told that every other soldier had to endure such pain as part of military service. See “NOD,” received April 11, 2017. * Private August 2017 treatment records that indicate the Veteran complained of chronic bilateral ankle pain. The examiner diagnosed the Veteran with chronic bilateral ankle pain. See “Medical Treatment Record – Non-Government Facility,” received January 16, 2020, pages 11-13 of 40. * In a January 2018 statement the Veteran reported receiving treatment for his bilateral ankles while stationed in Hawaii and that he had experienced discomfort and pain since then. See “Form 9,” received January 23, 2018. * May 2019 Board hearing, when the Veteran testified he stepped into a foxhole that was wet, that his boots shrank, and that he experienced calf and feet pain. He also reported that he received treatment of taking aspirin but that when he returned for followup treatment for the same complaint, he was told that he was lazy for complaining. He also reported his physician diagnosed him with poor circulation in his feet and that he reported to his physician it was from his tight boots during service. The Veteran also reported pain when wearing tight socks, and aching and burning in his feet when he lays down. See “Hearing Transcript,” received May 10, 2019. * Private September 2020 treatment records that indicate the Veteran reported poor circulation in his legs due to wearing Army boots during military service and that the pain bothered him during winter. The examiner diagnosed the Veteran with peripheral vascular disease, unspecified, and encouraged the Veteran to exercise to maintain proper blood circulation. See “Medical Treatment Record – Non-Government Facility,” received October 26, 2020. * September 2020 CAVC Joint Motion for Remand. See “CAVC Decision,” received September 16, 2020. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED, AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. 4. Return the claims file to the November 2017 VA examiner and request he re-review the claims file and respond to the inquiries below. If the examiner is not available, arrange for another appropriate VA examiner to provide an addendum medical opinion to assist in determining the relationship between the Veteran’s current tinnitus diagnosis and his service, to include recognized acoustic trauma. All appropriate tests, studies and consultations should be accomplished, including a new medical examination if necessary, and all clinical findings should be reported in detail in the narrative portion of the examination report. A rationale should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: a) What is the significance of the Veteran’s testimony of the onset of intermittent tinnitus during service on the development of his current recurrent tinnitus disability? b) What is the significance of the Veteran’s in-service exposure to acoustic trauma and his subsequent diagnosis of bilateral sensorineural hearing loss on the development of his current recurrent tinnitus disability? c) What is the significance of the Veteran’s 21-year history as a subway driver on the development of his current recurrent tinnitus disability? d) Is the Veteran’s current recurrent tinnitus disability proximately due to or aggravated (e.g. worsened, and if so, to what degree) by the Veteran’s service-connected bilateral hearing loss disability? e) If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED BECAUSE OF THIS REMAND, the VA examiner’s attention is drawn to the following: * November 2017 VA medical examination report and opinion. The examiner noted the Veteran demonstrated permanent positive threshold shifts indicative of acoustic trauma, and opined the Veteran’s current bilateral sensorineural hearing loss was due to his in-service acoustic trauma. With regards to his tinnitus, the Veteran reported the onset of recurrent tinnitus 3-4 years ago. The examiner opined the Veteran’s current tinnitus was not incurred in service because the Veteran reported the onset of tinnitus 3-4 years ago and that the Veteran worked for the New York City (NYC) Metropolitan Transportation Authority (MTA) for 21 years as a train operator. See “C&P Exam,” received November 28, 2017. * In a January 2018 statement the Veteran reported he was constantly exposed to loud noises during service and that he experienced constant tinnitus. See “Form 9,” received January 23, 2016. * May 2019 Board hearing, when the Veteran reported the onset of intermittent tinnitus during service that had worsened over the years. He also reported that being a transit operator did not result in significant noise exposure because the cab in which the driver sits was closed on both sides. See “Hearing Transcript,” received May 10, 2019. * September 2020 CAVC Joint Motion for Remand. See “CAVC Decision,” received September 16, 2020. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. The examiner should schedule a new examination only if necessary to provide an adequate opinion. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED, AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. 5. Following the review and any additional development deemed necessary, re-adjudicate the claims. Should the claims not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claims to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.