Citation Nr: 21010196 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-03 660 DATE: February 24, 2021 REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for a cervical spine disorder is remanded. REASONS FOR REMAND The Veteran had active duty service from April 1976 to July 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2014 and October 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in May 2019. A transcript of that hearing has been associated with the claims file. Upon review, the Board finds that additional development is needed prior to adjudication of the issues. The Board finds that VA examinations and medical opinions are needed in connection with the claims for service connection. The evidence indicates that there are current disabilities, and the Veteran has reported that he has experienced symptoms since service. Specifically, he has stated that he was physically assaulted in service, which caused his current low back, cervical spine, and psychiatric disorders. He has also claimed that his hepatitis C is due to in-service vaccinations with unclean needles. In addition, the Veteran has stated that his preexisting pes planus worsened while in service due to running and marching in combat boots. He has also reported that he has experienced hearing loss and tinnitus since service due to military noise exposure. Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a low back disorder, hearing loss, tinnitus, hepatitis C, an acquired psychiatric disorder, bilateral pes planus, and a cervical spine disorder. A specific request should be made for any medical records from the Veteran’s period of incarceration. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any low back and cervical spine disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current low back and cervical spine disorder that are causally or etiologically related to his military service, to include any injury or symptomatology therein. He has claimed that he developed the disorders as a result of a physical assault in service. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After any outstanding records are obtained, the Veteran should be afforded a VA examination to determine the nature and etiology of any hepatitis C that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current hepatitis C disorder that is causally or etiologically related to his military service. He or she should specifically address the Veteran’s claim that he contracted hepatitis C due to the administration of vaccinations with unclean needles during service. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After obtaining any outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of any bilateral hearing loss and tinnitus that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner is also advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a 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 meeting 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. The examiner should provide an opinion as to whether it is at least as likely as not that any current hearing loss and tinnitus are causally or etiologically related to the Veteran’s military service, to include noise exposure therein. In rendering this opinion, the examiner should discuss medically known or theoretical causes of hearing loss and tinnitus and describe how hearing loss and tinnitus which result from noise exposure generally present or develop in most cases, as distinguished from how hearing loss and tinnitus develop from other causes, in determining the likelihood that current hearing loss and tinnitus were caused by noise exposure in service as opposed to some other cause. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After any outstanding records are obtained, the Veteran should be afforded a VA examination to determine the nature and etiology of any acquired psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, but should include psychological testing, including PTSD sub scales. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment and personnel records, post-service medical records, lay statements and assertions, and any information pertaining to the claimed in-service stressor. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders. In so doing, the examiner should consider the diagnoses of record and the results of any testing performed. For each disorder identified other than PTSD, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to the Veteran’s military service. Regarding PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events and any stressors related to personal assault that he or she determines to have occurred in service may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should comment on whether the Veteran exhibited any behavioral changes during service that are indicative of the occurrence of an in-service personal assault. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. After any outstanding records are obtained, the Veteran should be afforded a VA examination to determine the nature and etiology of any bilateral pes planus that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. It should also be noted that the presumption of soundness does not apply for pes planus, as the disorder was noted at the time of the Veteran’s enlistment examination. The Veteran has claimed that his preexisting pes planus worsened while in service due to running and marching in combat boots. The examiner should state whether the Veteran’s preexisting pes planus was aggravated by his military service. In so doing, he or she should address whether there was any increase in the severity of the disorder during service. If so, the examiner should also discuss whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. In responding to this question, the examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted with symptoms, has worsened. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 7. After completing these actions, the AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Rideout-Davidson, 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.