Citation Nr: 21031496 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-13 102 DATE: May 24, 2021 REMANDED Entitlement to service connection for a disability manifested by low back pain is remanded. Entitlement to service connection for a disability manifested by neck pain is remanded. Entitlement to service connection for a disability manifested by left leg pain is remanded. Entitlement to service connection for a disability manifested by foot pain is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for toenail fungus is remanded. Entitlement to service connection for an acquired psychiatric disability, to include as due to an in-service personal assault, is remanded. Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to service connection for venous stasis syndrome, to include as secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as due to a service-connected disability and/or resulting obesity, is remanded. REASONS FOR REMAND The appellant served in the United States Army Reserve from July 1979 to March 1986, to include a period of active duty for training (ACDUTRA) from August 1979 to November 1979. The nature of appellant's Reserve service is unverified. This matter comes to the Board of Veterans' Appeals (Board) from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In January 2021, the appellant presented oral testimony in support of his appeal at a Board hearing that was conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of this hearing is of record. At the Veteran's Board hearing, the VLJ agreed to hold the record open for 90 days for the submission of additional evidence. The appellant submitted such evidence within this period, and thus, original consideration of this evidence by the AOJ is waived. Issue no longer in appellate status In addition to the issues before the Board, the appellant also initiated an appeal to establish service connection for tinnitus during the pendency of the appeal; however, by a February 2016 Decision Review Officer (DRO) decision, the AOJ established service connection for this disability. This action abrogated the Veteran's appeal with regard to this issue, and he did not express timely disagreement with either downstream element of this award. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Archbold v. Brown, 9 Vet. App. 124 (1996). Accordingly, this issue is no longer in appellate status and will be discussed no further. 1. Entitlement to service connection for a disability manifested by low back pain is remanded. 2. Entitlement to service connection for a disability manifested by neck pain is remanded. 3. Entitlement to service connection for a disability manifested by left leg pain is remanded. 4. Entitlement to service connection for a disability manifested by foot pain is remanded. 5. Entitlement to service connection for toenail fungus is remanded. 6. Entitlement to service connection for an acquired psychiatric disability, to include as due to an in-service personal assault, is remanded. 7. Entitlement to service connection for diabetes mellitus, type II, is remanded. 8. Entitlement to service connection for venous stasis syndrome, to include as secondary to diabetes mellitus, type II, is remanded. 9. Entitlement to service connection for obstructive sleep apnea, to include as due to a service-connected disability and/or resulting obesity, is remanded. While further delay is regrettable, the Board concludes that a remand is necessary to ensure that VA fulfills its duty to assist the appellant in substantiating his appeal. The appellant's appeal was certified to the Board in September 2016. At that time, the evidence of record was sparse, consisting only of the appellant's service records, the reports of July 2014 and January 2016 VA audiological examinations, and a February 2015 private sleep study showing a diagnosis of severe obstructive sleep apnea. At the January 2021 hearing, the appellant testified that he had evidence to support his appeal that he had not yet submitted. Shortly thereafter, he submitted a copy of a May 2009 favorable decision from the Social Security Administration (SSA), a buddy statement detailing the extent of the appellant's in-service snoring, and post-service treatment records (private and VA) showing diagnoses and/or symptoms of all of the appellant's claimed disabilities. While the additional evidence recently submitted by the appellant may ultimately assist the Board to allow one or more of the claims on appeal, it also makes clear that there is outstanding evidence pertinent to his appealed issues which must be obtained and associated with the record. This is especially true regarding the appellant's complete SSA file and VA treatment records within VA's constructive possession. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Bell v. Derwinski, 2 Vet. App. 611 (1992). As such, a remand to ensure completeness of the record is necessary. Further, in the February 2016 Statement of the Case, the AOJ denied each of the appellant's appealed issues because diagnoses of the claimed disabilities were not reflected on his October 1979 "military separation examination." Closer review of this record reflects that the purpose of the examination was to release the appellant from his period of ACDUTRA, not to separate him from the Army Reserve. It appears that the AOJ's mischaracterization of this record has narrowed the scope of the appellant's claims and resulting appeal by only considering causation of his claimed disabilities by incidents and/or diseases which may have occurred during his period of ACDUTRA from August 1979 to November 1979. This is problematic considering the appellant's January 2021 testimony that many of his claimed disabilities initially manifested just prior to his March 1986 separation from the Army Reserve. To the above point, the Board observes that the criteria to establish service connection for disabilities incurred during periods of ACDUTRA and Inactive Duty Training (INACDUTRA) differ from those pertaining to active duty service. Specifically, while service connection may be established for disabilities resulting from injuries, such as exposure to an herbicide agent, incurred on periods of ACDUTRA and INACDUTRA, service connection is warranted for diseases initially manifesting on periods of ACDUTRA only. With the above in mind, it is crucial to determine the dates of each period of ACDUTRA and INACDUTRA that the appellant served during the totality of his Reserve service and dates of initial onset of each of his claimed disabilities. To this end, the AOJ should obtain the Veteran's pay stubs for his service in the Army Reserve in an attempt to determine whether he was serving on ACDUTRA or INACDUTRA at any given time. Additionally, in light of the appellant's January 2021 testimony and subsequently submitted evidence showing current diagnoses and/or symptoms of all of his claimed disabilities, the Board concludes that the low threshold to provide the Veteran VA examinations to determine the nature, date of initial onset, and etiology, of his claimed disabilities. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 10. Entitlement to service connection for bilateral hearing loss is remanded. In-service exposure to excessive noise from heavy machinery during the appellant's Reserve service has been conceded, and he demonstrated bilateral hearing loss for VA purpose under 38 C.F.R. § upon audiometric testing in July 2014 and January 2016. As such, the crux of the appellant's appealed issue is whether the most probative evidence shows a nexus between his in-service noise exposure and this disability. The July 2014 and January 2016 VA examiners provided unfavorable opinions after a review of the record; however, the Board concludes that these opinions are inadequate for the purpose of readjudicating the appellant's appealed issue. Specifically, the rationales for the unfavorable opinions noted that the appellant did not demonstrate bilateral hearing loss upon audiometric testing in October 1979 and cited medical literature underlining the improbability of delayed-onset hearing loss. While the Board acknowledges and appreciates these opinions, they are founded on an inaccurate factual premise, as the appellant's October 1979 service examination was not for the purpose of separation, and the rationales are contrary to VA's policies concerning the development and adjudication of bilateral hearing loss as per Training Letter 10-02 (March 2010) and the United States Court of Appeals for Veterans Claims' (the Court's) holdings in Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992), and Hensley v. Brown, 5 Vet. App. 155, 159 (1993), concerning consideration of delayed-onset bilateral hearing loss. In light of above, the Board concludes that this appealed issue must be remanded to obtain an adequate nexus opinion concerning the nature, date of initial onset, and etiology of the appellant's bilateral hearing loss. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all post-service records of VA and private treatment, with the appellant's assistance regarding the latter. *The appellant is encouraged to cooperate with the AOJ's efforts in pursuit of any outstanding private treatment records by submitting completed VA Forms 21-4142 for each private clinician who has treated him during and since his service in the Army Reserve. 2. The AOJ must obtain and associate with the VA file all records from the SSA upon which the favorable May 2009 SSA decision was based. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records. 3. The AOJ must contact the Defense Finance and Accounting Service (DFAS), the National Personnel Records Center (NPRC), Records Management Center (RMC), and any other appropriate repository and request the appellant's pay stubs from his service in the Army Reserve from July 1979 to March 1986. Attempts to secure the pay stubs should be clearly documented in the file, along with any negative responses. 4. Based on the information obtained from the above instructions, the AOJ must verify the exact dates of each period of ACDUTRA and INACDUTRA that the appellant attended during his service in the Army Reserve. The AOJ must prepare a summary of this information and associate it with the VA file, as such will be utilized by VA examiners who may not be able to discern these periods of service without assistance or prior interpretation. 5. Thereafter, the AOJ must request that the appellant be provided a VA audiology examination conducted by a VA audiologist. After a review of the complete file and interview with and examination of the appellant, the VA examiner should conduct appropriate audiometric testing of the appellant's bilateral hearing acuity. The examiner must record decibel losses and speech recognition scores for each ear. Thereafter, the examiner must address provide an opinion concerning whether the appellant's bilateral hearing loss is at least as likely as not proximately due to or the result of his conceded in-service noise exposure. *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). Delayed-onset hearing loss must be considered. 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). If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 6. Thereafter, the AOJ must request that the appellant be scheduled for a VA psychiatric examination to determine the nature, date of initial onset, and etiology of any acquired psychiatric disability present during the appeal period. The complete record, to include a complete copy of this remand, should be made available to, and reviewed by, the designated examiner. Any and all appropriate tests and studies should also be performed and all clinical findings should be reported in detail. Based on a review of the evidence of record and an interview and examination of the appellant, the examiner should address the following: a. Identify all acquired psychiatric disabilities present during the appeal period (since August 6, 2013). *If a diagnosis of unspecified anxiety disorder with mild depression is not identified, such a finding must be reconciled with the evidence within the appeal period providing such a diagnosis. See a November 2019 VA treatment record. b. Review the historical records for evidence that might reflect that the claimed personal assault actually occurred during military service. In performing such review, the examiner must clearly identify the particular records which are felt to provide corroboration of the incident, and must give an adequate rationale for why it is felt that such records establish that a personal assault actually occurred during service. c. For any diagnosed acquired psychiatric disability, the examiner must identify the specific stressor(s) underlying the diagnosis and comment upon the link between the current symptomatology and the appellant's stressor(s) and must specifically address whether the identified stressors are adequate to support this diagnosis; and whether his symptoms are related to the identified stressors. d. For each diagnosed acquired psychiatric disability identified in part (a), provide an opinion concerning whether such is proximately due to or the result of the appellant's service, to include any in-service event, or injury, or stressor if verified. In providing the requested opinions, the examiner should cite to specific evidence supporting the conclusions reached. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 7. Thereafter, the AOJ must request that the appellant be scheduled for appropriate VA examination(s) to determine the nature, dates of initial onset, and etiology of his claimed toenail fungus, diabetes mellitus, type II, venous stasis syndrome, obstructive sleep apnea, and disabilities manifested by pain of the low back, neck, left leg, and feet. The complete record, to include a complete copy of this remand, should be made available to, and reviewed by, the designated examiner. Any and all appropriate tests and studies should be performed and all clinical findings should be reported in detail. Based on a review of the evidence of record and an interview and examination of the appellant, the examiner(s) should address the following: a. Identify or rule out the following during the appeal period (since August 6, 2013): i. Toenail fungus; ii. Diabetes mellitus, type II; iii. Venous stasis syndrome; iv. Obstructive sleep apnea; v. Any disability manifested by back pain; vi. Any disability manifested by neck pain; vii. Any disability manifested by left leg pain; viii. Any disability manifested by pain in one or both feet. b. For each disability identified in part (a), provide an approximate date of initial onset (month and year). *In addressing the above, the examiner must consider that the appellant is competent to report symptoms which he experiences through his senses, such as pain and swollen legs. c. For each disability identified in part (a), provide an opinion concerning whether such is at least as likely as not proximately due to or the result of the appellant's service, to include any in-service event or injury incurred during a period of ACDUTRA, INACDUTRA, or active duty as outlined by the summary of the appellant's Reserve service provided by the AOJ. d. If the appellant's reported back, neck, left leg, and/or foot pain is not found to be a manifestation of any disability, please describe the functional impairment resulting from his reported pain. In doing so, the examiner is requested, to the extent possible, to describe any and all effects of the appellant's pain on his ability to stand, turn his head, walk, run, kneel, bend, and stoop. e. If a diagnosis of venous stasis syndrome is confirmed and diabetes mellitus, type II, is determined to be proximately due to or the result of any incident of the appellant's service, provide an opinion concerning whether venous stasis syndrome is at least as likely as not caused or aggravated by diabetes mellitus, type II. f. Provide an opinion considering whether it is at least as likely as not that the Veteran's obesity is caused by or related to any disability determined to be proximately due to or the result of his service and/or medications prescribed for such. *In addressing the above, the examiner is asked to fully discuss the appellant's weight gain prior to his March 1986 discharge, whether his weight at separation qualified as obesity, and whether any of the appellant's service-connected disabilities (as determined by the above opinions) may limit his physical activities, and if so, whether such has contributed to his elevated BMI and obesity. g. If the response to part (f) is affirmative, provide an opinion regarding whether the appellant's obstructive sleep apnea is at least as likely as not caused or aggravated by the obesity stemming from his service-connected disabilities and/or medications prescribed for such. In providing the requested opinions, the examiner should cite to specific evidence supporting the conclusions reached. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 8. Thereafter, the AOJ must readjudicate the appellant's appealed issue in light of the totality of the record. If any benefit sought is not granted to the fullest extent, the appellant and his representative must be provided a copy of the readjudication and afforded an appropriate opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.