Citation Nr: 21010152 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 19-02 307 DATE: February 24, 2021 REMANDED Service connection for bilateral hearing loss is remanded. Service connection for chronic paranoid schizophrenia is remanded. Service connection for sleep apnea as due to chronic paranoid schizophrenia is remanded. Service connection for a left foot fracture as secondary to a right knee disability is remanded. A compensable rating for a fracture of the right third finger is remanded. A compensable rating for a fracture of the right fourth finger is remanded. A compensable rating for a laceration of the liver is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1972 to June 1974. In September 2019, the Board denied service connection for a left foot disorder, including as due to his service connected right knee disability. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court issued an Order granting a Joint Motion of Partial Remand (JMR) which vacated the Board’s denial of service connection for left foot disorder secondary to his service connected right knee disability and returned the case to the Board for further appellate review. The JMR specifically noted that the Veteran did not appeal the Board’s denial of service connection for a left foot condition on a direct basis. Bilateral Hearing Loss The November 2016 VA examiner’s opinion regarding the etiology of the Veteran’s hearing loss is inadequate because the examiner relied upon the Veteran’s lack of hearing loss in service for the basis of his opinion. It is not a sufficient rationale for a negative nexus opinion merely to state or assume that the Veteran’s hearing was within normal limits on audiometric testing during service. In such a case, service connection is not precluded if there is sufficient evidence to demonstrate a relationship between the appellant’s service and a current disability which satisfies 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Chronic Paranoid Schizophrenia Sleep Apnea The Veteran has not been afforded an examination to address the etiology of his psychiatric disability. See 38U.S.C. §5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As the Veteran claims that his sleep apnea is due to his schizophrenia, this claim is inextricably intertwined with the psychiatric claim being remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Fracture Left Foot The JMR specifically found that a VA examination relied upon by the Board was inadequate and that a new examination was warranted. As such, the Board will remand the matter consistent with the terms of the JMR.   3rd and 4th Right Fingers Laceration of Liver The Veteran’s most recent examinations regarding the severity of his finger and liver disabilities were conducted in 2016. Current examinations are warranted. The matters are REMANDED for the following action: 1. Schedule an examination to determine the etiology of the Veteran’s bilateral hearing loss. All indicated tests should be conducted. The claims file should be made available to the examiner for review. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss had its onset in service or within one year following separation from service or was causally related to service. The Veteran’s lay statements regarding onset and continuity of symptomology should be recorded and considered. A rationale for the opinion must be provided. The examiner is advised that it is not a sufficient rationale for a negative nexus opinion merely to state or assume that the Veteran’s hearing was within normal limits on audiometric testing during service. In such a case, service connection is not precluded if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and a current disability which satisfies 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 2. Schedule an examination to determine the nature and etiology of the Veteran’s schizophrenia. The claims file should be made available to the examiner for review. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s schizophrenia was incurred in, or due to, the Veteran’s service. The Veteran’s lay statements regarding onset and continuity of symptomology should be recorded and considered. A rationale for the opinion must be provided. 3. Schedule an examination to determine the nature and etiology of the Veteran’s sleep apnea. The claims file should be made available to the examiner for review. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was proximately due to or aggravated beyond its natural progression by the Veteran’s schizophrenia. The Veteran’s lay statements regarding onset and continuity of symptomology should be recorded and considered. A rationale for all opinions must be provided. 4. Obtain an addendum opinion from the examiner who conducted the July 2017 VA examination of the Veteran’s left foot and ask her to clarify whether there is documentation of a left foot injury, specifically previous left foot fractures, and whether any such documented left foot fractures are related to the Veteran’s service-connected right knee condition. If the July 2017 VA examiner is not available, schedule the Veteran for a new examination to determine the nature and etiology of any diagnosed left foot disorder. The claims file should be made available to the examiner for review. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any left foot disorder the was proximately due to or aggravated beyond its natural progression by the Veteran’s right knee condition. The examiner is asked to reconcile whether there is documentation of a left foot injury, specifically previous left foot fractures, and whether any such documented left foot fractures are related to the Veteran’s service-connected right knee condition. 5. Schedule examinations to determine the severity of the Veteran’s 3rd and 4th right finger fractures and liver laceration. The claims file should be made available to the examiner for review. All indicated tests and studies should be accomplished and the findings reported in detail. The examiners should provide a full description of the Veteran’s disabilities and report all symptoms and findings. Specific to the Veteran’s right fingers, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.