Citation Nr: 21010688 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 20-05 393 DATE: February 25, 2021 ORDER The appeal to reopen a claim for service connection for otitis externa is denied. The appeal to reopen a claim for service connection for tonsillitis is denied. The appeal to reopen a claim for service connection for an eye condition is denied. The appeal to reopen a claim for a nervous disorder (now characterized as an acquired psychiatric disorder) is granted. REMANDED Service connection for an acquired psychiatric disorder (to include nervousness, anxiety, depression, memory loss, and posttraumatic stress disorder (PTSD)) is remanded. Service connection for a left shoulder condition is remanded. Service connection for a lumbar spine condition is remanded. Service connection for a left hip condition (to include as secondary to a lumbar spine condition) is remanded. Service connection for a right hip condition (to include as secondary to a lumbar spine condition) is remanded. Service connection for a right knee condition (to include as secondary to a lumbar spine condition) is remanded. Service connection for a left knee condition (to include as secondary to a lumbar spine condition) is remanded. Service connection for a right ankle condition (to include as secondary to a lumbar spine condition) is remanded. Service connection for a left ankle condition (to include as secondary to a lumbar spine condition) is remanded. Service connection for bilateral pes planus (flat feet) is remanded. Service connection for a cervical spine condition is remanded. Service connection for a right elbow condition (to include as secondary to a cervical spine condition) is remanded. Service connection for a left elbow condition (to include as secondary to a cervical spine condition) is remanded. Service connection for bilateral hearing loss is remanded. Service connection for tinnitus is remanded. Service connection for hypertension is remanded. Service connection for a heart condition is remanded. Service connection for obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. A February 1980 Board decision upheld the September 1975 severance of service connection for otitis externa; the Veteran did not appeal that decision; and no new and material evidence was submitted within one year; therefore, the February 1980 Board decision became final. The Veteran filed a March 2018 claim to reopen service connection for otitis externa, but no new and material evidence has been received during the pendency of the appeal which reasonably relates to an unestablished fact necessary to substantiate the Veteran’s claim. 2. A February 1980 Board decision upheld the September 1975 severance of service connection for tonsillitis; the Veteran did not appeal that decision; and no new and material evidence was submitted within one year; therefore, the February 1980 Board decision became final. The Veteran filed a March 2018 claim to reopen service connection for tonsillitis, but no new and material evidence has been received during the pendency of the appeal which reasonably relates to an unestablished fact necessary to substantiate the Veteran’s claim. 3. A November 1969 rating decision denied service connection for an eye condition; that decision became final because it was not appealed; and no new and material evidence was submitted or added to the claims file within one year. The Veteran filed a March 2018 claim to reopen service connection for an eye condition, but no new and material evidence has been received during the pendency of the appeal which reasonably relates to an unestablished fact necessary to substantiate the Veteran’s claim. 4. A February 1980 Board decision upheld the September 1975 severance of service connection for a nervous disorder; that decision became final because it was not appealed; and no new and material evidence was received within one year. The Veteran filed a March 2018 claim to reopen the claim for service connection for a nervous condition and also submitted new claims for anxiety, depression, and PTSD. New and material evidence was submitted in the form of a private medical opinion diagnosing the Veteran with PTSD, major depression disease, and generalized anxiety disorder along with a positive causal link opinion. Therefore, the claim for a nervous condition is reopened and—to provide the Veteran with the most sympathetic review—the new claims for anxiety, depression, and PTSD have been combined with the reopened (and recharacterized) claim for service connection for an acquired psychiatric condition. CONCLUSIONS OF LAW 1. The criteria for reopening a claim for service connection for otitis externa have not been met and the claim may not be reopened. 38 U.S.C. §§ 5108, 5103A, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for reopening a claim for service connection for tonsillitis have not been met and the claim may not be reopened. 38 U.S.C. §§ 5108, 5103A, 7105; 38 C.F.R. §§ 3.156, 20.1103. 3. The criteria for reopening a claim for service connection for an eye condition have not been met and the claim may not be reopened. 38 U.S.C. §§ 5108, 5103A, 7105; 38 C.F.R. §§ 3.156, 20.1103. 4. The criteria for reopening a claim for service connection for a nervous disorder (now characterized as an acquired psychiatric disorder) have been met and the claim is reopened. 38 U.S.C. §§ 5108, 5103A, 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to September 1967. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issue of service connection for PTSD, a nervous condition, anxiety, memory loss, and depression, to encompass any acquired psychological disorder, to include PTSD, a nervous condition, anxiety, memory loss, and depression. The Board notes that in March 2019, the Veteran filed a RAMP Opt-in Election form, which was rejected in a March 2019 notification letter. The Veteran was given the opportunity to send in the correct form, but he did not respond. Therefore, the Veteran’s claims will continue to be processed in the Legacy system. The Board also notes that the Veteran’s April 1969 application for compensation or pension benefits included a claim for “chronic cough” which, upon review of the Veteran’s claims file, does not appear to have been adjudicated. Therefore, the Board will refer this claim to the AOJ for adjudication. New and Material Evidence Legal Criteria Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase “raises a reasonable possibility of substantiating the claim” enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Service connection may be granted for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. 1. The appeals to reopen claims for service connection for otitis externa and tonsillitis are denied. Factual Background and Analysis A February 1980 Board decision upheld the September 1975 severance of service connection for otitis externa and tonsillitis. The Veteran did not appeal the Board’s decision and no new and material evidence was added to the claims file. Therefore, the February 1980 Board decision became final, which essentially translates to the Veteran being denied service connection for the two conditions. Importantly, these conditions were denied (by severance) service connection because the Board found there was no in-service occurrence of the conditions, they were not present at separation, and there was no causal link (nexus) between the conditions and the Veteran’s military service. The Board found the grant of service connection for otitis externa and chronic tonsillitis was clearly and unmistakably erroneous and could not be restored. The Veteran filed a March 2018 claim to reopen service connection for otitis externa and tonsillitis. The Veteran submitted a November 2017 private treatment record (received by VA in ¬January 2018 ) for multiple conditions. The doctor noted the Veteran reported earaches, vertigo, tinnitus, and hearing loss due to noise exposure during military operations. The private medical doctor noted diagnoses for chronic otitis externa and chronic tonsillitis. The private doctor also opined that the Veteran’s diagnosed medical conditions are “more probable than not secondary to his military service performance.” The doctor did not provide a rationale for each individual disability. The Board notes that no other statements or evidence were submitted by the Veteran regarding his claims for tonsillitis or otitis externa since his application to reopen. The November 2017 private treatment record does not provide new and material evidence of a crucial fact that was missing and at least one reason for the original denial of the Veteran’s claims. First and foremost, neither the Veteran nor the private medical opinion offer evidence or reasoning of an in-service incurrence. While the medical evidence purports to offer a causal link, there is no mention or evidence given of a specific connection between the Veteran’s current diagnoses and a specific in-service event, injury, or disease. For this reason, the additional evidence does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the Veteran’s claims. As noted above, service connection requires three elements, and the new evidence submitted does not relate to at least one of those three necessary elements. Accordingly, because no new and material evidence was submitted during the appeal period, reopening of the Veteran’s claims for service connection for otitis externa and tonsillitis is not warranted. [CONTINUED ON NEXT PAGE] 2. The appeal to reopen a claim for service connection for an eye condition is denied. A November 1969 rating decision denied service connection for an eye condition; that decision became final because it was not appealed, and no new and material evidence was submitted or added to the claims file within one year. The Veteran filed a March 2018 claim to reopen service connection for an eye condition. The Veteran also submitted a November 2017 private treatment record (received by VA ¬January 2018) for multiple conditions. The doctor noted an eye diagnoses of myopia/stigmatism as well as the Veteran’s reports of red eyes, dryness, and blurred vision. As for other conditions, the private doctor opined that the Veteran’s diagnosed medical conditions are “more probable than not secondary to his military service performance” but did not provide a rationale for each individual disability. No other medical or lay statements were received during the pendency of the appeal regarding an eye condition. The Board cannot afford any probative weight to the November 2017 private medical opinion because the examiner provides no rationale for the opinion that the Veteran’s conditions are related to military service. Significantly, the Veteran’s claim for an eye condition was originally denied because it was legally not entitled to disability compensation. Having received no new and material evidence during the pendency of the appeal, which reasonably relates to an unestablished fact necessary to substantiate the Veteran’s claim, reopening of the Veteran’s claim for service connection for an eye condition must be denied. [NOTE TO VETERAN: On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). AMA has created a new framework for veterans dissatisfied with the Department of Veterans Affairs’ decisions on their claims to seek review. The Veteran may refile his claim under the AMA which contains a lower standard for reopening previously denied claims. Where “new and relevant” evidenced is presented or obtained, VA will readjudicate a claim. See 84 Fed. Reg. 138, 169 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.156(d)). Evidence shall be considered relevant if it tends to prove or to disprove a matter in issue in the Veteran’s appeal. See 84 Fed. Reg. 138, 172 (Jan. 18, 2019) (to be codified at 38 C.F.R.§ 3.2501(a)(1)). In order to reopen his claim, the Veteran must present competent and credible lay or MEDICAL evidence that his eye condition, otitis externa, or tonsillitis conditions are at least as likely as not causally linked to his military service or, in the alternative, at least as likely or not caused or aggravated by any service-connected disability. Any medical opinion must contain an adequate rationale (explanation) for why the conditions are related to service.] The Board is grateful to the Veteran for his honorable service and regrets that, by law, a more favorable decision is not available given the evidence of record. 3. The appeal to reopen a claim for a nervous disorder (now characterized as an acquired psychiatric disorder) is granted. New and material evidence was submitted in the form of a private medical opinion diagnosing the Veteran with PTSD, major depression disease, and generalized anxiety disorder along with a positive causal link opinion. The Board has recharacterized the issue of service connection for a nervous condition along with PTSD, anxiety, memory loss, and depression, to encompass any acquired psychological disorder. Therefore, the previously denied claim for a nervous condition is reopened because this new and material evidence raises a reasonable possibility of substantiating the claim, and it is now encompassed in the Veteran’s claim for an acquired psychiatric condition. [CONTINUED ON NEXT PAGE] REASONS FOR REMAND 1. Service connection for an acquired psychiatric disorder is remanded. The Veteran attended an August 2018 VA examination for PTSD. The examiner concluded the Veteran did not have a PTSD diagnosis or any other mental disorder that conforms with the DSM-5 criteria. No causal linkage (nexus) opinion was provided by the examiner because no diagnosis was made during this examination. The examiner failed to consider and address the November 2017 private medical record and opinion submitted by the Veteran and did not provide and rationale for why those diagnoses were not accurate. Further, the examiner’s opinion stated that the Veteran has no “current” psychiatric disorder but does not appear to consider whether the Veteran has had one at any point during the appeal period. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). Therefore, a remand is required to obtain a new VA examination and medical opinion. 2. Service connection for a left shoulder condition is remanded. The Veteran attended an August 2018 VA examination for his shoulder conditions. The Veteran reported that during active service, he injured his right shoulder. He also reported he had continued bilateral shoulder pain that is worse with repetitive overhead activities. The examiner diagnosed bilateral shoulder strain and indicated the right shoulder was diagnosed or had its onset in 1967 and the left shoulder in 1998. The examiner provided a positive causal link (nexus) opinion for the Veteran’s right shoulder. The examiner opined that it is less likely than not that the Veteran’s left shoulder disability is related to military service. The only reasoning provided by the examiner was that STRs are silent for treatment during service. The rationale provided by the examiner as it pertains to the left shoulder is inadequate. By law, a Veteran may still obtain service connection for a disability absent documentation in the service treatment records. The examiner must elicit from the Veteran any relevant statements pertaining to the in-service event, injury, or disease. Here, the Veteran has provided statements that he has had bilateral shoulder pain that has worsened since service. The examiner must take this into consideration when rendering a medical opinion. Therefore, a remand is required for a new VA examination and medical opinion. 3. Service connection for a lumbar spine condition is remanded. The Veteran has not been afforded a VA examination for the claimed condition. The Veteran submitted a November 2017 private treatment record for multiple conditions. The doctor noted the Veteran reports low back pain with para-lumbar muscle stiffness, numbness, tingling and sensorial loss with cramps, and weakness of para-lumbar spine muscles radiating to the hips, knees, and ankles. The November 2017 private doctor opined that the Veteran’s diagnosed medical conditions are “more probable than not secondary to his military service performance.” The doctor did not provide a rationale for each individual disability. Although the private medical opinion provides a sufficient “indication” that the Veteran’s diagnosed conditions might be related to military service (such that a VA examination is warranted to clarify the diagnoses and whether it is at least as likely as not related to his military service) the private medical opinion does not provide enough evidence or information for the Board to decide the Veteran’s claims. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA must provide a medical examination when there is insufficient medical evidence to decide the claim but there is evidence of a current disability, an in-service injury, and an “indication” of a potential causal link (nexus) to service). Therefore, a remand is required to obtain a VA examination and medical opinion. 4. Service connection for a left hip condition (to include as secondary to a lumbar spine condition) is remanded. 5. Service connection for a right hip condition (to include as secondary to a lumbar spine condition) is remanded. 6. Service connection for a right knee condition (to include as secondary to a lumbar spine condition) is remanded. 7. Service connection for a left knee condition (to include as secondary to a lumbar spine condition) is remanded. 8. Service connection for a right ankle condition (to include as secondary to a lumbar spine condition) is remanded. 9. Service connection for a left ankle condition (to include as secondary to a lumbar spine condition) is remanded. The Veteran has not been afforded VA examinations for the above claimed conditions. These issues are inextricably intertwined with the Veteran’s claim for service connection for a lumbar spine condition; accordingly, they must be remanded as well, and VA examinations and medical causal linkage (nexus) opinions must be obtained. 10. Service connection for bilateral pes planus (flat feet) is remanded. The Veteran attended an August 2018 VA examination for his bilateral feet conditions. The Veteran reported that his pre-existing pes planus was aggravated by service. He also reported that the pain worsens with prolonged standing and walking. The examiner diagnosed bilateral pes planus and indicated that the condition predated military service. The examiner opined that the Veteran’s bilateral pes planus was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner reasoned that there was no objective evidence that the condition was aggravated beyond its natural progression during the Veteran’s active service and STRs are silent for complaints, evaluation and/or treatment related to pes planus. By law, the absence of notations in STRs in and of itself is not a sufficient reason to deny service connection. Additionally, the examiner did not apply the correct legal standard for the presumption of soundness, which is implicated when the evidence suggests that a medical condition predates military service. Therefore, a remand is required to obtain a new VA medical opinion. 11. Service connection for a cervical spine condition is remanded. The Veteran has not been afforded a VA examination for the above claimed condition. The Veteran submitted a November 2017 private treatment record for multiple conditions. The private doctor diagnosed the Veteran with neck and high back stiffness, numbness, tingling and sensorial loss with cramps, and weakness of para-cervical spine muscles radiating to the shoulders, arms, elbows, and wrists. The private doctor opined that the Veteran’s diagnosed medical conditions are “more probable than not secondary to his military service performance.” The doctor did not provide a rationale for each individual disability. Although the private medical opinion provides a sufficient “indication” that the Veteran’s diagnosed conditions might be related to military service (such that a VA examination is warranted to clarify the diagnoses and whether it is at least as likely as not related to his military service), the private medical opinion does not provide enough evidence or information for the Board to decide the Veteran’s claims. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA must provide a medical examination when there is insufficient medical evidence to decide the claim but there is evidence of a current disability, an in-service injury, and an “indication” of a potential causal link (nexus) to service). Therefore, a remand is required to obtain a VA examination and medical opinion. 12. Service connection for a right elbow condition (to include as secondary to a cervical spine condition) is remanded. 13. Service connection for a left elbow condition (to include as secondary to a cervical spine condition) is remanded. The Veteran has not been afforded VA examinations for the above claimed conditions. These issues are inextricably intertwined with the Veteran’s claim for service connection for a cervical spine condition; accordingly, they must be remanded as well, and VA examinations and medical causal linkage (nexus) opinions must be obtained. 14. Service connection for bilateral hearing loss is remanded. 15. Service connection for tinnitus is remanded. The issues of service connection for bilateral hearing loss and tinnitus are closely related and routinely addressed within the same VA examination as was the case here; therefore, they will be addressed together. The Veteran attended an August 2018 VA examination for his bilateral hearing loss and tinnitus. The examiner confirmed a prior diagnosis of bilateral hearing loss and tinnitus. The examiner opined that the Veteran’s bilateral hearing loss was less likely than not caused by or a result of an event in military service. The reasoning provided by the examiner was that normal hearing was recorded at separation. Regarding tinnitus, the examiner also opined that it was less likely than not related to military service. The examiner reasoned that the Veteran’s MOS was food service specialist and had a low probability of hazardous noise exposure. No other rationale was provided. The Board finds the rationale is legally insufficient because the Veteran’s service treatment records (STRs) clearly show the Veteran reported hearing problems during service and, by law, the fact that the Veteran’s separation examination was normal and his MOS is listed as having a low likelihood of hazardous noise do not, in and of themselves, preclude the Veteran’s hearing loss from being related to military service. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). Therefore, a remand is required to obtain a new VA medical examination and opinion. 16. Service connection for hypertension is remanded. 17. Service connection for a heart condition is remanded. As the two issues above may be closely related, they will be addressed together for the purposes of this decision. The Veteran has not been afforded a VA examination for either of the claimed conditions. The Veteran submitted a November 2017 private treatment record for multiple conditions. The doctor indicated the Veteran has dizziness, sudden onset headaches, palpitations, diaphoresis, and chest tightness which are treated with “poor blood pressure and serum cholesterol levels control.” The private medical doctor noted diagnoses of hypertensive cardiovascular disease, chronic atrial fibrillation, and dyslipidemia, and provided a positive causal linkage (nexus) opinion but did not provide a rationale for the opinions rendered. Although the private medical opinion provides a sufficient “indication” that the Veteran’s diagnosed conditions might be related to military service (such that a VA examination is warranted to clarify the diagnoses and whether it is at least as likely as not related to his military service), the private medical opinion does not provide enough evidence or information for the Board to decide the Veteran’s claims. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Therefore, a remand is required obtain a VA examination and medical opinion. 18. Service connection for obstructive sleep apnea (OSA) is remanded. The Veteran has not been afforded a VA examination for either of the claimed conditions. The Veteran submitted a November 2017 private treatment record for multiple conditions. The doctor indicated the Veteran has obstructive sleep apnea and provided a positive causal link (nexus) opinion but did not provide a rationale for the opinions rendered. Although the private medical opinion provides a sufficient “indication” that the Veteran’s diagnosed condition might be related to military service (such that a VA examination is warranted to clarify the diagnoses and whether it is at least as likely as not related to his military service), the private medical opinion does not provide enough evidence or information for the Board to decide the Veteran’s claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Therefore, a remand is required in order to obtain a VA examination and medical opinion. The matters are REMANDED for the following action: 1. Please note that this Veteran’s case has been advanced on the docket and, by law, ALL remanded claims must be processed expeditiously. 2. The Board REFERS to the AOJ the claim for service connection for chronic cough, which was received in the Veteran’s April 1969 VA 21-526 Veterans Application for Compensation and Pension. Based on a review of the record, this issue does not appear to have been adjudicated at the Regional Office or AOJ level in any rating decision issued between 1969 and 1980. 3. The AOJ should arrange for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) of the Veteran to determine the nature and likely cause of any acquired psychiatric disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all psychiatric disabilities present during the appeal period (from March 2018). (b.) For each psychiatric disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. (c.) The examiner must address the November 2017 private treatment record (received January 2018) and discuss why or why not any diagnoses within that record are not valid or accurate. The examiner’s attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the claims folder): (d.) A June 1966 STR noted the Veteran was observed for deafness, but it was not proven. Additionally, it noted under personality, passive aggressive, chronic, moderate, manifested by stubbornness, recalcitrance and poor response to stress. (e.) In a June 1976 VA examination, the Veteran was diagnosed with anxiety neurosis in a hysterical character. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinion(s), that the Veteran’s reports are both accurate and credible. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 4. The AOJ should arrange for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) of the Veteran to determine the nature and likely cause of any left shoulder disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all left shoulder disabilities present during the appeal period (from March 2018). (b.) For each left shoulder disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner’s attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the claims folder): (a.) A November 2017 private treatment record (received January 2018). (b.) The August 2018 VA examination in which The Veteran reported that during active service, he had continued bilateral shoulder pain that is worse with repetitive overhead activities. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran’s reports are both accurate and credible. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 5. The AOJ should arrange for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) of the Veteran to determine the nature and likely cause of any lumbar spine disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all lumbar spine disabilities present during the appeal period (from March 2018). (b.) For each lumbar spine disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner’s attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the claims folder): (c.) A November 2017 private treatment record (received January 2018). (d.) A May 2019 VA treatment record noted the Veteran was being treated for low back pain. (e.) A July 2019 VA treatment record noted the Veteran had arthritis of the musculoskeletal system. It did not specify with body parts. After the above development is completed, the examiner should provide an opinion with detailed rationale that responds to the following: (f.) Please identify, by diagnosis, all BILATERAL HIP, BILATERAL KNEE, AND BILATERAL ANKLE disabilities present during the appeal period (from March 2018). (g.) For each bilateral hip, bilateral knee, and bilateral ankle disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either incurred in or otherwise related to the Veteran’s active duty service? Please explain why. (h.) IF the examiner determines the Veteran’s lumbar spine condition is at least as likely as not related to his military service (Directive 6.(b.) above), THEN, for each bilateral hip, bilateral knee, and bilateral ankle disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran’s service-connected lumbar spine disability? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner must address both cause and aggravation. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran’s reports are both accurate and credible. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 6. The AOJ should arrange for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) of the Veteran to determine the nature and likely cause of his bilateral pes planus disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) The examiner is reminded that the Veteran has a current diagnosis of pes planus (bilaterally) and the examiner should accept this as true and accurate. (b.) By law, the examiner MUST start with the assumption that the Veteran did NOT have bilateral pes planus before service, and must determine whether there is “clear and unmistakable evidence” that the Veteran’s bilateral pes planus existed prior to service (by law, a notation of a history of bilateral pes planus on the entrance examination report does not rise to the level of “clear and unmistakable evidence”). (c.) IF AND ONLY IF the examiner determines the Veteran’s bilateral pes planus pre-exist service, then the examiner MUST state whether any current asthma condition was “clearly and unmistakably” NOT aggravated beyond the natural progression of the disease by active service. Please note that the “clearly and unmistakably” standard does NOT mean a lack of evidence. A complete explanation for the opinions must be provided. (d.) IF the examiner determines that the Veteran’s bilateral pes planus did not pre-exist service, THEN is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner is reminded that the Veteran is competent (medically qualified) to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran’s reports are both accurate and credible. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 7. The AOJ should arrange for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) of the Veteran to determine the nature and likely cause of any cervical spine disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all cervical spine disabilities present during the appeal period (from March 2018). (b.) For each cervical spine disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner’s attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the claims folder): (c.) A November 2017 private treatment record (received January 2018). (d.) A July 2019 VA treatment record noted the Veteran had arthritis of the musculoskeletal system. It did not specify with body parts. After the above development is completed, the examiner should provide an opinion with detailed rationale that responds to the following: (e.) Please identify, by diagnosis, all right and left elbow disabilities present during the appeal period (from March 2018). (f.) For each right and left elbow disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either incurred in or otherwise related to the Veteran’s active duty service? Please explain why. (g.) IF the examiner determines the Veteran’s cervical spine condition is at least as likely as not related to his military service (Directive 7.(b.) above), THEN, for each right and left elbow disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran’s service-connected cervical spine disability? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner must address both cause and aggravation. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran’s reports are both accurate and credible. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 8. The AOJ should arrange for an addendum VA medical opinion (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) of the Veteran to determine the nature and likely cause of any hearing loss and tinnitus disabilities. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and any examination of the Veteran (if deemed necessary by the examiner), the examiner should provide an opinion with detailed rationale that responds to the following: (a.) The examiner is reminded that the Veteran has current diagnoses for hearing loss and tinnitus disabilities and the examiner must accept this as true and accurate for the purposes of these medical opinions. (b.) For each hearing loss and tinnitus disability, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. (c.) The examiner is reminded that simply the lack of notation of hearing loss in service or recorded threshold shift are not, by law, adequate reasons alone for not finding the conditions are related to military service. The examiner’s attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the claims folder): (d.) A June 1966 STR noted the Veteran was observed for deafness. (e.) A June 1966 STR, the Veteran complained that he could not hear. He showed unreliable audiograms during his stay and it appeared he was able to hear. A psychiatrist’s impression was that the Veteran was able to hear and that he represented a passive-aggressive personality. (f.) The Veteran's September 1967 separation examination revealed the Veteran was treated for otitis media bilaterally (childhood, well healed). (g.) A November 2017 private treatment record (received January 2018). The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran’s reports are both accurate and credible. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 9. The AOJ should arrange for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) of the Veteran to determine the nature and likely cause of any hypertension disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all hypertension disabilities present during the appeal period (from March 2018). (b.) For each hypertension disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. (c.) The examiner should address the November 2017 private medical opinion (received January 2018) and address it in any opinion rendered. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran’s reports are both accurate and credible. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 10. The AOJ should arrange for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) of the Veteran to determine the nature and likely cause of any heart disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all heart disabilities present during the appeal period (from March 2018). (b.) For each heart disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. (c.) The examiner should address the November 2017 private medical opinion (received January 2018) and address it in any opinion rendered. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran’s reports are both accurate and credible. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 11. The AOJ should arrange for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) of the Veteran to determine the nature and likely cause of any sleep apnea disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all sleep apnea disabilities present during the appeal period (from March 2018). (b.) For each sleep apnea disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner’s attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the claims folder): (c.) A September 1967 report of medical history at separation, the Veteran listed ear, nose, and throat trouble and chronic cough. (d.) The November 2017 private medical opinion (received January 2018). (e.) A July 2018 VA treatment record problem list, included a notation that the Veteran was receiving treatment for sleep apnea The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran’s reports are both accurate and credible. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). [NOTE TO VETERAN: The Veteran is also welcome to obtain an updated version of the private medical opinion that meets the criteria for the Board to use as evidence; that is, (1) the examiner indicates they are familiar with the relevant facts, (2) the examiner uses the correct legal standard in the opinion (using the language “at least as likely as not related to military service” or “50% or more likely related to military service”), and (3) most importantly, the examiner provides a thorough explanation (rationale) for why they believe the medical condition is causally related to the Veteran’s military service. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Williams, Associate 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.