Citation Nr: 21022378 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 11-18 458A DATE: April 15, 2021 ORDER Service connection for tinnitus is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for metatarsalgia of the right 3rd toe with intractable plantar keratosis, status post multiple surgeries with surgical scar, is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether current tinnitus had its onset in or is otherwise related to the Veteran’s period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1979 to August 1984. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been before the Board previously. In April 2017 the Board remanded the issue of an increased rating for metatarsalgia of the right 3rd toe for a clarifying VA examination, since it found that the examinations on record were contradictory and therefore, inadequate for evaluation purposes. Additionally, the Board remanded the issue of service connection for tinnitus because the October 2009 examiner did not provide a reasoning for why tinnitus was not due to service. Further, the October 2009 examination did not consider the Veteran’s statements about having tinnitus since service or the Veteran’s history of in-service excessive noise exposure. After an April 2020 SSOC considered the record, this matter was returned to the Board for appellate consideration. Remand is required because there has not been substantial compliance with the April 2017 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Remand is not required regarding the claim of service connection for tinnitus, as that claim is being granted in full. 1. Service connection for tinnitus. After review of the record, the Board finds that the criteria for service connection for tinnitus have been met. An October 2009 VA examination includes a diagnosis of tinnitus. 10/16/2009, VA Examination. The Board, accordingly, finds competent evidence of a current disorder of tinnitus. The Veteran contends that he experienced in-service noise exposure due to constant exposure to excessive noise. Service records demonstrate that the Veteran received the Parachutist Badge, Expert Badge with M-16 Rifle Bar, Sharpshooter Badge with Hand Grenade BA/Drivers Badge, Canadian Parachutist Badge, and Mechanic Badge. 08/01/2002, DD Form 214. The Board, accordingly, finds that the evidence is at least in equipoise as to whether the Veteran experienced excessive noise during service. At the October 2009 VA examination, the Veteran reported constant tinnitus that began following boot camp during service. 10/16/2009, VA Examination. The VA examiner opined that current tinnitus is not due to the Veterans’ service, however, the Board had already determined that opinion to be inadequate based on the lack of a rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (stating that neither a normal separation examination alone nor the absence of a separation audiometric examination is an adequate basis for a negative nexus opinion in such a case). As the tinnitus is a chronic disease under 38 C.F.R. § 3.309 (a), an award of service connection may be established based on continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015) (classifying bilateral hearing loss and tinnitus as organic diseases of the nervous system under 38 C.F.R. § 3.309 (a)). With consideration of the totality of the relevant evidence, the Board finds that the competent and probative evidence is at least in equipoise as to whether tinnitus was noted in service with post-service continuity of the same symptomatology. Accordingly, any doubt on the material issue of nexus is resolved in the Veteran’s favor, and the claim of service connection for tinnitus is granted. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (stating that the primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the “nexus” requirement of the three-element test, whereas the former benefits from presumptive service connection (absent intercurrent causes) or service connection via continuity of symptomatology). REASONS FOR REMAND 1. An initial rating in excess of 10 percent for metatarsalgia of the right 3rd toe with intractable plantar keratosis. As mentioned above, the April 2017 the Board remand requested a new VA examination regarding an increased rating for the Veteran’s metatarsalgia of the right 3rd toe disability. See 4/20/2017 BVA Decision. The record showed that the Veteran did not attend his examination. See 6/1/2018 Exam Request; see also 7/21/2018 Exam Request. However, the claims file is unclear as to whether he was timely notified of the date and time of the examination. In this regard, a request for the examination was noted in April 2018. See 4/12/2018 Exam Request. The Veteran was notified by VA that the examination was requested through a private facility and the private facility would advise him of the date, time, and place of the examination. See 4/13/2018 Subsequent Development Letter. However, as mentioned above, the record is unclear that the Veteran was timely notified of the date and time of his examination. Reports from June and July 2018 stated that the Veteran requested that his examination be rescheduled since he received the appointment details by mail the same day of the appointment and he was unable to attend. See 2/19/2019 VA Form 21-0820. Apart for the aforementioned report, there is no record (written or otherwise) that the Veteran was informed of the date and time of his examination at his latest address of record. In short, it is unclear as to whether the Veteran was timely and properly informed of the examination ordered in April 2018. Consequently, this issue must be remanded again to schedule an examination and properly document in the claims file that the Veteran was provided adequate and timely notice at his latest address of record. If the Veteran declines the examination, proper documentation must be shown in the claims file. In remanding this claim, the Veteran is notified that the duty to assist is not a one-way street; a claimant is obligated to cooperate in the development of a pending claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In short, any further failure to appear for an examination, as scheduled, may result in the denial of the issue on appeal. 2. A TDIU. With respect to the Veteran’s claim for a TDIU, the Board finds that this claim is inextricably intertwined with his pending increased rating claim for metatarsalgia of the right 3rd toe. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact’ upon another and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources the two claims are inextricably intertwined). Therefore, the adjudication of TDIU is deferred pending adjudication of the Veteran’s claim for an increased rating for metatarsalgia of the right 3rd toe. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. Document all requests for information as well as responses in the claims file. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. After completion of step #1, schedule the Veteran for an examination with an appropriate specialist concerning the level of impairment of the metatarsalgia of the right 3rd toe disability. The clinician is to review the virtual file, including a copy of this Remand. The examiner is to provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should also test range of motion of the foot/toes in active motion, passive motion, weightbearing, and non-weightbearing for both feet/toes. Any additional limitations due to pain or other factors should be set forth. The opposite joint (left foot/toes) should also be tested if that joint has no demonstrated abnormalities. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments relative to whether and to what degree the Veteran’s service-connected disabilities cause affect his occupational functioning and activities of daily living. (CONTINUED ON NEXT PAGE)   A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Jeffrey A. Gelber Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, 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.