Citation Nr: 21013959 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 19-28 996 DATE: March 11, 2021 REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for vascular dementia is remanded. Entitlement to service connection for left upper extremity carpal tunnel syndrome is remanded. Entitlement to service connection for right upper extremity carpal tunnel syndrome is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. Entitlement to service connection for a bilateral foot disability, to include pes planus, arthritis, and hammertoes, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1966 to December 1967. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a May 2017 Department of Veterans’ Affairs (VA) regional office (RO) rating decision. 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Veteran contends that he has bilateral hearing loss and tinnitus due to military service. At a May 2017 VA examination, the Veteran was diagnosed with bilateral hearing loss and tinnitus. Furthermore, the Veteran’s military personnel file also indicates that he was a medical supply clerk in Vietnam and was exposed to weapons fire, explosions, and helicopters with no hearing protection. The Veteran participated in a May 2017 VA examination. The VA examiner stated that while there was no entrance audiological testing results, the Veteran’s separation audiological examination reflected hearing within normal limits. For this reason, the May 2017 VA examiner opined that the Veteran’s bilateral hearing loss and tinnitus were less likely than not related to service. The examiner also explained that it was unlikely that the Veteran a delayed onset hearing loss by citing to numerous medical studies. Initially, the Board notes that the fact that there was no hearing loss in service is not dispositive of the issue and an opinion based on this fact is inadequate. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Second, the examiner failed to address whether the Veteran experienced any hearing loss by his own admissions in service or shortly thereafter. For this reason, remand for a new VA examination is necessary. 3. Entitlement to service connection for vascular dementia, to include peripheral vascular disease and peripheral artery disease, is remanded. Pursuant to McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006), a VA examination is required if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for finding a link between a current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006). January 2020 CAPRI records diagnose the Veteran with vascular dementia. The Veteran also has verified service in the Republic of Vietnam from August 1966 until August 1967. Therefore, the presumption regarding in-service exposure to herbicide attaches. See 38 C.F.R. § 3.309(e). Vascular dementia is not presumptively related to service pursuant to 38 C.F.R. § 3.309(e). However, this does not preclude a Veteran from proving entitlement to service connection directly. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The Veteran has not been afforded a VA examination to determine whether his vascular dementia is etiologically related to service, to include presumed exposure to herbicides. For these reasons, remand is necessary to obtain a VA examination regarding the nature and etiology of this disability. 4. Entitlement to service connection for left upper extremity carpal tunnel syndrome is remanded. 5. Entitlement to service connection for right upper extremity carpal tunnel syndrome is remanded. 6. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. 7. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. Remand is required to obtain an adequate medical opinion, or if necessary, a new VA examination. A medical opinion report is considered adequate “where it is based on consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one.” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Per a May 2017 VA examination, the Veteran was diagnosed with bilateral upper extremity carpal tunnel syndrome and bilateral lower extremity peripheral neuropathy in 2016. As noted above, the Veteran served in the Republic of Vietnam and is presumed exposed to herbicide. See 38 C.F.R. § 3.309(e). While the Veteran’s neuropathy conditions manifested years after separation and cannot be presumptively service connected per 38 C.F.R. § 3.309(e), this does not preclude a Veteran from proving entitlement to service connection on a direct or secondary basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The May 2017 VA examiner opined that the Veteran’s bilateral upper and lower neuropathy conditions were less likely than not related to service as they were only “recently diagnosed, more than 40 years after service,” and the Veteran denied any combat related injuries. This medical opinion, however, is inadequate as it failed to discuss the Veteran’s presumed exposure to herbicides while serving in Vietnam. For this reason, remand is necessary to obtain an opinion regarding whether the Veteran’s bilateral upper and lower extremity neuropathy disabilities are related to service, to include his presumed exposure to herbicides. Additionally, November 2019 and March 2020 CAPRI records state that while the Veteran’s peripheral neuropathy disabilities have “no clear etiology,” his “severe” peripheral vascular disease is likely involved, and additionally, that his presumed exposure to herbicides “could also play a role” and “relates possibly” to it. For this reason, an opinion regarding whether his bilateral upper and lower neuropathy were caused or aggravated by the Veteran’s vascular disease will also be requested. 8. Entitlement to service connection for a bilateral foot disability, to include pes planus, arthritis, and hammertoes, is remanded. Preliminarily, the Board notes that the Veteran’s bilateral pes planus was noted at entrance to the military; his arthritis and hammertoes were not. See July 2018 Lay Statement and January 2020 CAPRI records. Therefore, this issue presents many theories of entitlement to service connection: [1] whether his pre-existing bilateral pes planus was aggravated beyond its normal progression by service, or [2] whether his other bilateral foot disabilities, to include arthritis and hammertoes, were directly related to service. Here, remand is required to obtain an adequate medical opinion, or if necessary, a new VA examination. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). At the May 2017 VA examination, the VA examiner correctly indicated that the Veteran’s pes planus pre-existed service and opined that it was less likely than not that the Veteran’s foot disabilities were aggravated beyond their normal progression by service. The examiner noted that while the Veteran’s service treatment record mentions “foot trouble” there is no mention of a worsened or new foot disability. It was further indicated that the Veteran’s hammertoes were diagnosed in 2016 and are a “known long-term progression of pes planus.” However, regarding direct service connection, the VA examiner simply stated that the Veteran’s bilateral foot disabilities were less likely than not due to military service or combat. As the VA examiner failed to provide any rationale, the Board finds this examination inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion to determine the nature and etiology of the Veteran’s bilateral hearing loss and tinnitus. If an additional VA examination (or telehealth interview, review of the record, or similar, if an in-person examination is not feasible) is deemed necessary, then one should be scheduled.  The claims folder must be reviewed in conjunction with the examination and opinion. The examiner must provide an opinion responding to each of the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral hearing loss began during service, within one year of service, or is otherwise etiologically related to service? (b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s tinnitus began during service, within one year of service, or is otherwise etiologically related to service? The examiner is advised that where hearing loss is not demonstrated upon separation from service, service connection may still be found based on all of the relevant evidence both during and after service. The examiner is also advised that the Veteran is competent to report history and symptoms and that those reports must be considered in formulating any requested opinion.  If the examiner rejects the Veteran’s reports, the examiner must provide a rationale for doing so.  Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made.  2. Obtain a VA examination (or telehealth interview, review of the record, or similar, if an in-person examination is not feasible) to determine the nature and etiology of the Veteran’s vascular dementia. The claims folder must be reviewed in conjunction with the examination and opinion. The examiner must provide an opinion responding to each of the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s vascular dementia began during service or is otherwise etiologically related to service, to include his presumed in-service exposure to herbicides? 3. Obtain an addendum VA medical opinion to determine the nature and etiology of the Veteran’s bilateral upper extremity carpal tunnel syndrome and bilateral lower extremity peripheral neuropathy. If an additional VA examination (or telehealth interview, review of the record, or similar, if an in-person examination is not feasible) is deemed necessary, then one should be scheduled.  The claims folder must be reviewed in conjunction with the examination and opinion. The examiner must provide an opinion responding to each of the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral upper extremity carpal tunnel syndrome onset in service or is otherwise related to service, to include his presumed exposure to herbicides? (b) it at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral lower extremity peripheral neuropathy onset in service or is otherwise related to service, to include his presumed exposure to herbicides? In answering (a) and (b), the November 2019 and March 2020 CAPRI records suggesting that while the Veteran’s peripheral neuropathy disabilities have “no clear etiology,” his presumed exposure to herbicides “could also play a role” and “relates possibly.” 4. Obtain an addendum VA medical opinion to determine the nature and etiology of the Veteran’s bilateral foot disability, to include pes planus, hammertoes, and arthritis. If an additional VA examination (or telehealth interview, review of the record, or similar, if an in-person examination is not feasible) is deemed necessary, then one should be scheduled.  The claims folder must be reviewed in conjunction with the examination and opinion. The examiner must provide an opinion responding to each of the following: (a) Did the Veteran’s bilateral pes planus clearly and unmistakably pre-exist his period of active service? If so, is it also clear and unmistakable that the bilateral pes planus was NOT aggravated in service beyond its natural progression? (b) If the examiner finds that the Veteran’s pes planus either did not clearly and unmistakably pre-exist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to the Veteran’s period of active service, to include his combat experience in Vietnam? (c) For any other foot diagnosis, to include arthritis and hammertoes, is it at least as likely as not (a 50 percent or greater probability) that these disabilities onset in service, within one year of service, or are otherwise related to service, to include the Veteran’s combat experience in Vietnam? (d) Is it at least as likely as not (a 50 percent or greater probability) that that the Veteran’s foot disability, to include pes planus, arthritis, and hammertoes, were caused by the Veteran’s neuropathy disabilities (if these disabilities are found to be service-connected)? (e) Is it at least as likely as not (a 50 percent or greater probability) that that the Veteran’s foot disability, to include pes planus, arthritis, and hammertoes, were aggravated by the Veteran’s neuropathy disabilities (if these disabilities are found to be service-connected)? In answering (d) and (e), the VA examiner is asked to specifically comment on the Veteran’s testimony, to include the July 2018 Lay Statement. 5. After ensuring compliance with the directives above, readjudicate the claims. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, 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.