Citation Nr: 21030265 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-49 247 DATE: May 18, 2021 REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1977 to July 1980, with additional service in the Army Reserve. These matters come to the Board of Veterans' Appeals (Board) from an August 2015 rating decision which, in pertinent part, denied entitlement to service connection for PTSD, bilateral hearing loss, tinnitus, headache, lumbar spine, right shoulder, bilateral foot, bilateral ankle, and bilateral knee disabilities, and SMC based on the need for aid and attendance. In February 2020, the Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. In April 2020, the Board remanded the matters for further development, to include obtaining outstanding VA and private treatment records and VA examinations and medical opinions. In a February 2021 rating decision, VA granted service connection for a right shoulder disability. As the grant of service connection represents a maximum grant of the benefit sought on appeal for the right shoulder, this issue no longer remains pending before the Board. 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. The record reflects that the Agency of Original Jurisdiction (AOJ) is actively working on the issue of entitlement to service connection for PTSD. Subsequent to the February 2021 supplemental statement of the case (SSOC), the AOJ undertook stressor development on the Veteran's alleged personal trauma in service and requested additional information from the Veteran in a March 2021 letter. As such, this issue is not ripe for adjudication and the issue is remanded to the AOJ for the issuance of a SSOC. 2. Entitlement to service connection for bilateral hearing loss is remanded. 3. Entitlement to service connection for tinnitus is remanded. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for bilateral hearing loss and tinnitus at this time. While the Veteran was afforded a VA audiological examination in December 2020, the Board finds that the examination and medical opinion are inadequate. Specifically, while audiometric testing revealed bilateral hearing loss, the examiner indicated that test results were not valid for rating purposes due to bilateral cerumen impaction. Therefore, the Board is unable to determine whether the Veteran has bilateral hearing loss for VA purposes. Additionally, when rendering an etiological opinion on the Veteran's bilateral hearing loss and tinnitus, the examiner indicated that a separation examination was not associated with the record. However, there is a February 1982 audiogram associated with the Veteran's reserve service and it is not clear whether the examiner considered this record. Finally, the examiner indicated that there was not sufficient evidence from studies to support delayed onset hearing loss. However, the examiner did not state that the studies conclusively rule out the possibility of delayed onset hearing loss. Therefore, the Board finds the December 2020 VA audiological opinion lacks probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). A remand for a new VA examination and medical opinion is warranted. 4. Entitlement to service connection for headaches is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for headaches at this time. While the Veteran was afforded VA examinations in January 2021, the Board finds that the examination and medical opinion is inadequate. Specifically, while the examiner opined that it was not at least as likely as not that the Veteran's headaches were incurred in or were otherwise related to service, the examiner's opinion appears to be based on an absence of treatment records in service. The Board notes that the absence of service treatment records cannot be the sole basis for rendering a negative nexus opinion. Furthermore, while the examiner indicated that the Veteran reported that his headaches did not begin until 1998, the Veteran has subsequently clarified that he reported an increase in headaches after additional injury in 1998, not that his headaches did not begin until 1998. Additionally, while the examiner was unable to state without mere speculation that the Veteran's headaches were incurred during service, the examiner did not indicate whether the need to speculate was due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner did not have the knowledge or training. A remand for a new VA examination and medical opinion is warranted. 5. Entitlement to service connection for a lumbar spine disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a lumbar spine disability at this time. While the Veteran was afforded a VA examination in January 2021, the Board finds that the medical opinion is inadequate. Specifically, while the examiner opined that it was not at least as likely as not that the Veteran's lumbar spine disability was incurred in or was otherwise related to service, the examiner's rationale was that the examiner was unable to state without mere speculation that the Veteran's lumbar spine disability was caused by the rigors of service, including lifting heavy pots, and not events or lifestyle after service. However, the examiner did not indicate whether the need to speculate was due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner did not have the knowledge or training. Furthermore, it is not clear whether the examiner considered a July 1979 service treatment record showing complaints of back pain. Therefore, the Board finds that a remand is warranted for a new medical opinion. An examination is not necessary unless deemed so by the examiner. 6. Entitlement to service connection for a left foot disability is remanded. 7. Entitlement to service connection for a right foot disability is remanded. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for left and right foot disabilities at this time. While the Veteran was afforded VA examinations in January 2021, the Board finds that the examinations and medical opinions are inadequate. As it pertains to the Veteran's diagnosed pes planus and degenerative arthritis, while the examiner opined that it was not at least as likely as not that the Veteran's foot disabilities were incurred in or were otherwise related to service, the examiner's opinion appears to be based on an absence of treatment records in service. The Board notes that the absence of service treatment records cannot be the sole basis for rendering a negative nexus opinion. Additionally, while the examiner was unable to state without mere speculation that the Veteran's bilateral pes planus and degenerative arthritis were caused by the rigors of service and not events or lifestyle after service, the examiner did not indicate whether the need to speculate was due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner did not have the knowledge or training. As it pertains to the Veteran's claimed dermatologic condition of his bilateral feet, while the examiner opined that it was not at least as likely as not that the Veteran's foot fungus and itchy feet were incurred in or were otherwise related to service, the examiner's opinion appears to be based on an absence of treatment records in service. The Board notes that the absence of service treatment records cannot be the sole basis for rendering a negative nexus opinion. Additionally, it is not clear whether the examiner considered July and December 1979 service treatment records showing complaints of a rash. Furthermore, while the examiner indicated that the Veteran reported that his foot fungus has resolved upon examination and did not provide a diagnosis, the Veteran has sought treatment for bilateral tinea pedis as recently as February 2020. Therefore, the requirement of a current disability during the appeal period is met. Finally, while the examiner was unable to state without mere speculation that the Veteran's foot fungus or itchy feet were caused by service, the examiner did not indicate whether the need to speculate was due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner did not have the knowledge or training. Therefore, the Board finds that a remand is warranted for a new VA examination and medical opinion. 8. Entitlement to service connection for a left ankle disability is remanded. 9. Entitlement to service connection for a right ankle disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for left and right ankle disabilities at this time. While the Veteran was afforded a VA examination in January 2021, the Board finds that the examination and medical opinion are inadequate. Specifically, while the Veteran reported pain, the examiner indicated that there were no findings to support a diagnosis. However, pain can constitute disability if it results in impairment. Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018). Furthermore, it is not clear whether the examiner considered a February 2020 VA treatment record showing limited range of motion of the ankle and diagnosis of ankle equinus. Finally, while the examiner opined that it was not at least as likely as not that the Veteran's ankle disabilities were incurred in or were otherwise related to service, the examiner's opinion appears to be based on an absence of treatment records in service. The Board notes that the absence of service treatment records cannot be the sole basis for rendering a negative nexus opinion. Furthermore, while the examiner was unable to state without mere speculation that the Veteran's bilateral ankle disability was caused by the rigors of service and not events or lifestyle after service, the examiner did not indicate whether the need to speculate was due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner did not have the knowledge or training. Therefore, the Board finds that a remand is warranted for a new VA examination and medical opinion. 10. Entitlement to service connection for a left knee disability is remanded. 11. Entitlement to service connection for a right knee disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for left and right knee disabilities at this time. While the Veteran was afforded a VA examination and medical opinion in February 2021, the Board finds that the medical opinion is inadequate. Specifically, while the examiner opined that it was not at least as likely as not that the Veteran's knee disabilities were incurred in or were otherwise related to service, the examiner's opinion appears to be based on an absence of treatment records in service. The Board notes that the absence of service treatment records cannot be the sole basis for rendering a negative nexus opinion. Additionally, it is not clear whether the examiner considered a February 1980 service treatment record showing complaints of left knee pain. Finally, while the examiner was unable to state without mere speculation that the Veteran's bilateral ankle disability was caused by the rigors of service and not events or lifestyle after service, the examiner did not indicate whether the need to speculate was due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner did not have the knowledge or training. Therefore, the Board finds that a remand is warranted for a new medical opinion. An examination is not necessary unless deemed so by the examiner. 12. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. Finally, because a decision on the remanded service connection issues could significantly impact a decision on the issue of entitlement to SMC, the issues are inextricably intertwined. A remand of the claim for SMC is required. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records from December 2020 to present. 2. Schedule the Veteran for a VA examination for his claimed bilateral hearing loss and tinnitus. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran's bilateral hearing loss and/or tinnitus (1) began during active service, to include related to kitchen noise exposure as a cook or alleged hits to his head during fights, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinion(s). The Board notes that the etiology of a Veteran's hearing disability cannot be based solely on a Veteran's "normal" hearing at entrance to and separation from service. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If the examiner is unable to provide an opinion without resorting to speculation, the examiner should indicate whether the need to speculate was due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner did not have the knowledge or training. 3. Schedule the Veteran for a VA examination for his claimed headache disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran's headaches (1) began during active service, to include related to alleged hits to his head during fights, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If the examiner is unable to provide an opinion without resorting to speculation, the examiner should indicate whether the need to speculate was due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner did not have the knowledge or training. 4. Obtain an addendum opinion from an appropriate clinician as to the nature and etiology of the Veteran's claimed lumbar spine disability. The examiner must review the claims file. A new examination is not necessary unless deemed so by the examiner. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran's lumbar spine disability (1) began during active service, to include related to the rigors of service such as heavy lifting, or a July 1979 complaint of back pain, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service, to include a February 1995 record in which the Veteran reported having a bad back? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If the examiner is unable to provide an opinion without resorting to speculation, the examiner should indicate whether the need to speculate was due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner did not have the knowledge or training. 5. Schedule the Veteran for a VA examination for his claimed bilateral foot musculoskeletal or dermatological conditions, including pes planus, degenerative arthritis, and tinea pedis. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran's bilateral foot musculoskeletal and/or dermatological conditions (1) began during active service, to include related to complaints of rash in September and December 1979 and the rigors of service, (2) was noted during service with continuity of the same symptomatology since service, to include diagnosis and treatment of tinea pedis in February 2020? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If the examiner is unable to provide an opinion without resorting to speculation, the examiner should indicate whether the need to speculate was due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner did not have the knowledge or training. 6. Schedule the Veteran for a VA examination for his claimed bilateral ankle disability, to include ankle equinus. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran's bilateral ankle disability (1) began during active service, to include related to the rigors of service, (2) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If the examiner is unable to provide an opinion without resorting to speculation, the examiner should indicate whether the need to speculate was due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner did not have the knowledge or training. 7. Obtain an addendum opinion from an appropriate clinician as to the nature and etiology of the Veteran's claimed bilateral knee disability. The examiner must review the claims file. A new examination is not necessary unless deemed so by the examiner. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran's bilateral knee disability (1) began during active service, to include related to a February 1980 complaint of left knee pain or the rigors of service, (2) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If the examiner is unable to provide an opinion without resorting to speculation, the examiner should indicate whether the need to speculate was due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner did not have the knowledge or training. 8. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.