Citation Nr: 21014229 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-62 115 DATE: March 11, 2021 REMANDED Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a dermatological condition, to include actinic keratosis, is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from August 1968 to August 1970. The Veteran is a Vietnam Era Veteran. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in August 2019. A transcript of the hearing is associated with the claims file. This case was previously before the Board in December 2019. The claims were remanded to obtain outstanding treatment records and obtain VA examinations to determine the nature and etiology of the issues as outlined above. The case has been returned to the Board for readjudication. The Board finds that, unfortunately, further development is necessary prior to adjudicating these claims. 1. Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected disabilities, is remanded. The Veteran underwent VA examinations to determine the nature and severity of his hearing loss in October 2012 and March 2020. In October 2012, the Veteran did not have hearing loss, for VA purposes, in the left ear. 38 C.F.R. § 3.385. The examiner opined that the Veteran’s right ear hearing loss was not causally related to service, relying primarily upon the lack of threshold shift noted on the Veteran’s separation evaluation. In March 2020, the Veteran demonstrated hearing loss in both ears, consistent with relevant regulations. Id. The examiner, however, found that the Veteran’s hearing loss was less likely as not caused by his military service. The examiner noted that automobiles can produce hazardous noise exposure but found that there was no evidence of acoustic trauma by the Veteran’s in-service audiograms. With regard to secondary service connection, the examiner noted that tinnitus and hearing loss are co-concurrent, but tinnitus did not cause hearing loss. 38 C.F.R. § 3.310. As an initial matter, the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection may be granted 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 (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As noted above, the Veteran credibly testified that he was exposed to acoustic trauma while assisting in racetrack activities during service. See Hearing Transcript, dated August 2019. Moreover, he testified that this activity occurred prior to discharge from the Army but subsequent to his separation physical. As both examiners relied upon the lack of threshold shift in the separation evaluation, but did not address that the stated noise event occurred while in service but after the separation physical, nor did they specifically address the Veteran's statements regarding the onset of his symptoms related to this event, the Veteran should receive a new examination upon remand. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007). With regard to secondary service connection, while the March 2020 examiner opined that it was less likely as not that the Veteran’s tinnitus caused his hearing loss, there was no opinion rendered as to whether the Veteran’s tinnitus aggravated his existing hearing loss. 38 C.F.R. § 3.310. As such, upon remand, the Veteran should receive a VA examination to determine whether his service-connected tinnitus aggravates his hearing loss. 2. Entitlement to service connection for a left foot disability is remanded. The Veteran underwent a VA examination to determine the nature and etiology of his left foot disability in March 2020. The examiner found that the Veteran’s left foot demonstrated no traumatic findings, nor was there a diagnosis associated with a left foot condition. The examiner further reported that there was no evidence of pain with the left foot. The Veteran, however, credibly testified at his August 2019 hearing before the undersigned that he had pain in his left foot. 38 C.F.R. § 3.303(a); see also Shedden, 381 F.3d at 1163. Specifically, he stated that it ached when he put pressure on it. The examiner, however, did not address these statements in his evaluation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In Saunders v. Wilkie, 885 F.3d. 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit addressed the issue of whether pain without an accompanying pathology can constitute a "disability" under 38 U.S.C. § 1110. The Federal Circuit concluded that "pain is an impairment because it diminishes the body's ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment." Id. at 1364. Nonetheless, the Federal Circuit explained that to establish the presence of a disability based on subjective pain, a Veteran "will need to show that his or her pain reaches a level of a functional impairment of earning capacity." Id. at 1368. Despite being directed to consider such a holding in the prior remand, the examiner did not address whether a disability was present consistent with the holding in Saunders. See Saunders, 885 F.3d. at 1356; Stegall v. West, 11 Vet. App. 268 (1998). In light of the above, the Veteran should receive a new VA examination to determine the nature and etiology of his left foot disability, to include specific address of the Saunders holding. 3. Entitlement to service connection for a left ankle disability is remanded. The Veteran underwent a VA examination to determine the nature and etiology of his left ankle in October 2015 and March 2020. The October 2015 examiner opined that it was less likely as not that the Veteran's left ankle disability was causally related to his military service, finding that the Veteran had tenderness of the left ankle, but that there were no degenerative findings, upon x-ray, consistent with a chronic disabling left ankle condition. Moreover, the examiner noted that there was no medical record of either evaluation of or treatment for a left ankle disability since discharge from service. The examiner, however, did not address the Veteran’s complaints of pain, instability, and swelling of the left ankle. See Saunders, 885 F.3d. at 1356; see also Hearing Transcript, dated August 2019. The March 2020 examiner opined that it was less likely as not that the Veteran’s left ankle disability was due to service. The examiner supported his statement by asserting that the Veteran had treatment in August 1968 due to his in-service ankle injury, but he had no additional treatment for this injury. The examiner further stated that the Veteran’s bilateral ankle x-rays were age appropriate. The examiner went on to state, however, that up to 70% of individuals who suffer acute ankle sprains may develop residual ankle disabilities and that continued investigation between the incident ankle sprain and chronic ankle instability with development of posttraumatic osteoarthritis is still needed. These inconsistent statements were not reconciled within the report. Moreover, the examiner did not address whether the Veteran’s ankle pain, consistent with the holding in Saunders, was causally related to his in-service ankle sprain. 4. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran underwent VA examinations to determine the nature and etiology of his lumbar spine disability in October 2015, with an addendum opinion in February 2016, and March 2020. In the February 2016 addendum opinion, the examiner opined that it was less likely as not that the Veteran’s lumbar spine disability, as there was no link the in-service injury to the current chronic back condition. The opinion was merely conclusory and was not explained considering the evidence of record. Nieves-Rodriguez, 22 Vet. App. at 295; Stefl v. Nicholson, 21 Vet. App. 120 (2007). In March 2020, the examiner opined that the Veteran’s lumbar spine disability was less likely as not due to the Veteran’s in-service back injury. The examiner stated that the record was vague as to the location of the in-service muscle contusion, and that the currently claimed disability was not due a muscle contusion. The examiner further noted that there was “no way to connect that a single episode in service with his current condition or what caused back pains in 2004 through 2013 requiring therapy.” The examiner did not provide an explanation for the relevance of the location of the muscular condition to the Veteran’s current disability. Moreover, the examiner did not opine as to whether the inability to connect a single episode is due to a deficiency in the state of general medical knowledge or by a deficiency in the record or the examiner. Jones v. Shinseki, 23 Vet. App. 382 (2010). Finally, the examiner did not address the Veteran’s claims of symptomatology being present since service. Nieves-Rodriguez, 22 Vet. App. At 295. In light of the above, the Veteran should receive a new VA examination to determine the nature and etiology of his lumbar spine disability. 5. Entitlement to service connection for a dermatological condition, to include actinic keratosis, is remanded. The Veteran underwent VA examinations to determine the nature and etiology of his dermatological condition in October 2015, with an addendum opinion in February 2016, and March 2020. In a February 2016 addendum opinion, the examiner stated that while there was evidence of a medical condition, there was no medical documentation linking the 1968 skin condition to the treatment of sun damaged skin condition. This, however, was merely a conclusory statement, not fully explained considering all of the evidence of record. Nieves-Rodriguez, 22 Vet. App. 295 (2008); Stefl, 21 Vet. App. 120 (2007). The Veteran submitted a letter from his treating dermatologist, Dr. P.O., dated September 2019. She stated that medical treatment received during his military service, more likely than not partially resulted in the Veteran's actinic keratosis. The characteristic of "partially resulted" is unclear and, as such, this opinion, alone, is insufficient to adjudicate this issue. The December 2019 Board remand specifically requested that this evidence be addressed by the VA examiner on remand. The March 2020 VA examiner opined that it was less likely as not that the Veteran’s actinic keratosis was causally related to his military service. The examiner supported the opinion by stating that there was no in-service condition consistent with actinic keratosis. The examiner further stated that impossible in two years of military service how much long-term solar exposure got to create actinic keratosis and the Veteran was in Germany where there are limited hours of daily sunshine. The examiner, however, did not provide a thorough explanation as to the rationale or the evidence as to how the Veteran’s in-service solar exposure was measured and determined; without such an explanation, this is a speculative opinion, not fully supported by evidence. Moreover, the examiner did not address the September 2019 letter from the Veteran’s treating dermatologist that stated that the Veteran’s actinic keratosis more likely than not “partially resulted” in the Veteran’s actinic keratosis, as directed in the December 2019 Board remand. See Stegall, 11 Vet. App. at 271. In light of the above, the Veteran should receive a new VA examination, upon remand, to determine the nature and etiology of his dermatological conditions. The matters are 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 the disabilities on appeal. After acquiring this information and obtaining any necessary authorizations, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral hearing loss. The Veteran's claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. A complete history should be elicited from the Veteran. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should opine as to the following: (a.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current hearing loss is causally or etiologically related to the Veteran's military service, including asserted noise exposure therein. The examiner should specifically address the Veteran's reported noise exposure during his service-related activity on a racetrack in Germany. The examiner should also specifically address the Veteran's claims of symptomatology, to include the onset thereof. (b.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any current bilateral hearing loss is either caused by or aggravated by the Veteran's service-connected tinnitus. In providing this opinion, the examiner should consider and address the Veteran's lay statements concerning the onset of his symptomatology and any continuity thereof. The Veteran is considered competent to attest to symptomatology, to include its onset. If there is any medical or evidentiary reason to doubt the Veteran’s lay statements, this should be clearly stated and supported with evidence of record. The examiner should also consider and specifically address the Veteran’s contention that the acoustic trauma occurred prior to separation but after his separation evaluation. A thorough discussion of the rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions, would be of significant assistance to the Board. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his left foot and left ankle disabilities. The Veteran's claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. If possible, this evaluation should be performed by a provider who has never evaluated the Veteran and has not opined as to the issues on appeal. The examination, if possible, should be performed by a provider who has a specialty or specific clinical knowledge of orthopedics, including the underlying causes of orthopedic conditions, to including the acceleration of onset of such conditions. If no such provider is available, this should be clearly documented in the file, to include any efforts to locate such a provider. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should opine as to the following: (a.) Please list each disability affecting the Veteran's left foot during the period on appeal. (b.) Is it as likely as not (a 50 percent probability or greater) that the Veteran's left foot disability was caused by the Veteran's active service, to include the reported incident of a rolled ankle incurred in service. This should include an analysis as to whether the incident accelerated the onset of any existing left foot disability. (c.) Please list each disability affecting the Veteran's left ankle during the period on appeal. (d.) Is it as likely as not (a 50 percent probability or greater) that the Veteran's left ankle disability was caused by the Veteran's active service, to include the reported incident of a rolled ankle incurred in service. This should include an analysis as to whether the incident accelerated the onset of any existing left ankle disability. (e.) The examiner must also address whether Veteran has a disability manifested by pain in the left foot or the left ankle. The examiner should specifically indicate whether the Veteran has or had had functional impairment of earning capacity of the left foot or the left ankle, in accord with the holding of Saunders v. Wilkie, 885 F.3d. 1356 (Fed. Cir. 2018), and if so, the examiner should express an opinion as to whether it is at least as likely as not it was incurred in or otherwise the result of the Veteran's active service. In providing this opinion, the examiner should consider and address the Veteran's lay statements concerning the onset of his symptomatology and any continuity thereof. The Veteran is competent to attest to symptomatology, to include the onset and continuity. If there is reason to doubt the Veteran’s lay statements, this must be clearly stated in the evaluation and supported by evidence of record. A thorough discussion of the rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions, would be of significant assistance to the Board. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his lumbar spine disability. The Veteran's claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. If possible, this examination should be performed by a provider who has never evaluated the Veteran and has not opined as to the issue on appeal. The examination, if possible, should be performed by a provider who has a specialty or specific clinical knowledge of orthopedics or neurology, including the underlying causes of lumbar spine conditions, to including the acceleration of onset of such conditions. If no such provider is available, this should be clearly documented in the file, to include any efforts to locate such a provider. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should opine as to the following: (a.) Please identify each lumbar spine disability affecting the Veteran during the period on appeal. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's lumbar spine disability is causally related to the Veteran's military service, to include the freezer door falling on the Veteran. This should include an analysis as to whether the incident accelerated the onset of any existing lumbar spine disability. In providing this opinion, the examiner should consider and address the Veteran's lay statements concerning the onset of his symptomatology and any continuity thereof. The Veteran is competent to attest to symptomatology, to include its onset and continuity. If there is reason to doubt the Veteran’s lay statements, this should be clearly stated in the evaluation and supported by the evidence of record. A thorough discussion of the rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions, would be of significant assistance to the Board. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his dermatological condition. The Veteran's claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. If possible, this examination should be performed by a provider who has never evaluated the Veteran and has not opined as to the issue on appeal. The examination, if possible, should be performed by a provider who has a specialty or specific clinical knowledge of dermatology, including the underlying causes of skin conditions, to including the acceleration of onset of such conditions. If no such provider is available, this should be clearly documented in the file, to include any efforts to locate such a provider. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should opine as to the following: (a.) Please identify each dermatological condition affecting the Veteran during the period on appeal. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's dermatological condition is causally related to the Veteran's military service. The examiner should, specifically, address the skin lesions reported while in service and any treatments for any medical conditions, while in service, which would render the Veteran photophobic. The examiner should also address the letter from the Veteran's treating dermatologist, Dr. P.O., dated September 2019. In providing this opinion, the examiner should consider and address the Veteran's lay statements concerning the onset of his symptomatology and any continuity thereof. The Veteran is considered competent to attest to symptomatology, to include its onset and duration. If there is reason to doubt the lay statements of the Veteran, this should be clearly stated in the evaluation and supported by the evidence of record. A thorough discussion of the rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions, would be of significant assistance to the Board. ANTHONY C. SCIRÉ, JR. Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Trotter, 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.