Citation Nr: 21023911 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-59 800 DATE: April 21, 2021 REMANDED Entitlement to service connection for a right ear hearing loss disability is remanded. Entitlement to service connection for jungle rot is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to a rating in excess of 50 percent for an adjustment disorder with depressed mood is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from March 1974 to June 1981. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for a right ear hearing loss disability is remanded. In May 2020, the Board remanded the matter to obtain a medical opinion on the etiology of the Veteran’s bilateral hearing loss disability. In a September 2020 opinion, the examiner opined that the Veteran’s preexisting left ear hearing loss disability was aggravated by service but that the right ear hearing loss disability was not related to service. The examiner reasoned that there was no significant threshold shift between the Veteran’s entry date and separation date from 500 through 6000 Hertz. However, the examiner also acknowledged the Veteran’s history as a combat engineer; expert rifleman and excessive in-service noise exposure. Despite the negative etiological opinion within the examination report, on page 8 of the report, the examiner states that it is at least as likely as not that the Veteran’s bilateral hearing loss disability was incurred in service. Based on the conflicting evidence, the Board finds that a remand is necessary to obtain an addendum medical opinion. 2. Entitlement to service connection for jungle rot is remanded. In May 2020, the Board remanded the matter to obtain a medical opinion on the etiology of the Veteran’s claimed jungle rot. Specifically, the Board requested that the examiner opine whether it was at least as likely as not that the Veteran’s jungle rot was incurred in or otherwise related to service. In a September 2020 medical opinion, the examiner opined that the etiology of the Veteran’s jungle rot was infection. “Per literature search, jungle rot is caused by multiple types of infection including fungal and bacterial.” This opinion is unresponsive to the Board’s request. The Agency of Original Jurisdiction (AOJ) failed to comply with the Board’s remand in this regard. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand “confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders”). Therefore, the Board finds that a remand is necessary to obtain an adequate addendum opinion. 3. Entitlement to service connection for a left foot disability is remanded. In a September 2020 medical opinion, the examiner opined that it was less likely than not that the Veteran’s claimed left foot disability was related to service because the Veteran admitted that he injured his foot while roller skating; service treatment records do not show treatment of a foot disability and there was no current evidence of abnormal findings. However, the examiner does not address favorable evidence that the Veteran had post-service evidence of edema and left foot pain and his alleged skating injury occurred during a period of active service. Therefore, the Board finds that a remand is necessary to obtain an addendum medical opinion. 4. Entitlement to service connection for vertigo is remanded. In May 2020, the Board remanded the matter to obtain a medical opinion on the etiology of the Veteran’s vertigo. The Veteran was never afforded a VA examination to address its etiology. See Stegall, supra. Therefore, the Board finds that a remand is necessary to afford the Veteran a VA examination. 5. Entitlement to a rating in excess of 50 percent for an adjustment disorder with depressed mood is remanded. At the June 2020 VA mental disorders examination, the Veteran reported treatment at North Texas VAHCS, local Vet Centers and via the University of Texas-Arlington. There are no records from any Vet Centers or the University of Texas. Therefore, the Board finds that a remand is necessary to obtain outstanding private treatment records. 6. Entitlement to TDIU is remanded. The Veteran contends that he is entitled to TDIU due to, in part, his psychiatric disability. See March 2020 VA Form 21-8940. As the Board is remanding the Veteran’s psychiatric claim for further development, the Board finds that it must remand the issue of entitlement to a TDIU as inextricably intertwined with the Veteran’s pending claims, as the adjudication of these issues may affect the Veteran’s combined disability rating. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (stating two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Request the Veteran’s records of assessment and treatment from all applicable Vet Centers and from the University of Texas-Arlington, dating from November 2010 to present. See June 2020 VA mental disorders examination report where the Veteran reported treatment at local Vet Centers and UT-Arlington. If, after making reasonable efforts to obtain non-VA records the AOJ is unable to secure same, the AOJ must notify the Veteran and (a) identify the specific records the AOJ is unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) inform the Veteran that she is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Obtain an addendum opinion from the September 2020 examiners (or suitable substitutes) regarding the etiology of the Veteran’s right ear hearing loss disability; jungle rot, left foot disability; and vertigo. The Veteran’s electronic claims folder, including a copy of this remand, should be provided to the examiner. The examiner is requested to provide an opinion as to the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right ear hearing loss disability was incurred in or is otherwise related to active service. In providing the requested opinion, the examiner should address the Veteran’s in-service audiograms, to include the medical significance of any documented shift in hearing acuity, and the Veteran’s lay statements. In doing so, the examiner should presume the Veteran is competent to report matters within his own personal knowledge, including exposure to loud noise and diminished hearing. The examiner should note that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The examiner should not rely solely on the absence of hearing loss in service as a basis for any opinion. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). (b) Opine whether the Veteran suffers from a skin disability (claimed as jungle rot). (c) If so, opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed skin disability was incurred in or are otherwise related to active service. The examiner’s attention is directed to the Veteran’s contention that he is entitled to service connection for jungle rot because during basic training he noticed a hole in his foot and has had a recurring problem on his skin ever since. The September 2020 medical opinion was inadequate as it was not responsive to the Board’s directives. It merely concluded that the Veteran’s jungle rot was due to an infection but did not opine its relation to service. (d) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left foot disability was incurred in or are otherwise related to active service. The September 2020 medical opinion was inadequate because it ignored favorable evidence, including VA treatment records which show left foot edema and pain. Evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. Saunders v. Wilkie, 886 F.3d 1356 (2018). (e) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s claimed vertigo was incurred in or are otherwise related to active service. A complete rationale for all opinions reached, including citation to appropriate medical principles, must be provided. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the etiology of his claimed vertigo. The Veteran’s electronic claims folder, including a copy of this remand, must be provided to the examiner. The examiner is requested to provide an opinion as to the following: Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s vertigo was incurred in or is otherwise related to service. The examiner’s attention is directed to the Veteran’s contention that he has experienced symptoms of dizziness and a middle ear infection during service and since service separation. A complete rationale for all opinions reached, including citation to appropriate medical principles, must be provided. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Baskerville, LaRita 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.