Citation Nr: 22036062 Decision Date: 06/22/22 Archive Date: 06/22/22 DOCKET NO. 20-22 798 DATE: June 22, 2022 ORDER Entitlement to service connection for a stiff neck disorder is denied. Entitlement to service connection for a bilateral foot disorder with swelling and pain is denied. Entitlement to service connection for tinea pedis is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to the service-connected chronic obstructive pulmonary disease (COPD), is remanded. Entitlement to service connection for a heart disorder, to include an enlarged heart and coronary artery disease, and as secondary to the service-connected COPD, is remanded. Entitlement to service connection for bilateral hearing loss, to include as secondary to the service-connected COPD, is remanded. Entitlement to service connection for tinnitus, to include as secondary to the service-connected COPD, is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran has a current diagnosed stiff neck disorder. 2. The evidence of record persuasively weighs against finding that the Veteran has a current diagnosed bilateral foot disorder with swelling and pain. 3. The evidence of record persuasively weighs against finding that the Veteran has a current diagnosis of tinea pedis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a stiff neck disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for entitlement to service connection for a bilateral foot disorder with swelling and pain have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 3. The criteria for entitlement to service connection for tinea pedis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1969 to April 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2018 and November 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board notes that in a September 2018 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran's claims for service connection for bilateral hearing loss, tinnitus, high blood pressure, and an enlarged heart. Within one year of this rating decision, the Veteran underwent VA examinations pertinent to his claims and submitted a timely notice of disagreement (NOD) in December 2018 addressing these service connection claims. As such, even though the AOJ issued another rating decision in November 2018 that addressed the Veteran's service connection claims for bilateral hearing loss, tinnitus, high blood pressure, and an enlarged heart, the September 2018 rating decision as to these issues is not final and is on appeal in this decision. 1. Entitlement to service connection for a stiff neck disorder, a bilateral foot disorder with swelling and pain, and tinea pedis The Veteran claims that he has a stiff neck disorder, a bilateral foot disorder, and tinea pedis that are related to service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). To warrant service connection, the threshold requires competent evidence of the existence of the claimed disability at some point during the pendency of the Veteran's appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. § 3.102. After careful review of the evidence of record, the Board finds that service connection for a stiff neck disorder, a bilateral foot disorder, and tinea pedis is not warranted because the evidence does not show that the Veteran meets the first element of service connection, which is evidence of a current disability. While a "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect," 38 U.S.C. § 1701(1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service-connected disabilities"), here there is no medical evidence of a current diagnosis, or any symptoms associated with the Veteran's claimed stiff neck disorder, bilateral foot disorder, and tinea pedis. In this regard, a confirmed diagnosis is not shown at any time during the appeal period or any corresponding functional impairment. The Veteran also did not submit any medical evidence showing that he was diagnosed during the appeal period or had corresponding symptoms related to these claimed disorders. The Board acknowledges that the Veteran reported receiving VA treatment from Shoals community-based outpatient clinic (CBOC) from January 2017 to November 2017. See November 2017 VA Form 21-526EZ. As such, the AOJ obtained VA treatment records, to include from Shoals CBOC, from May 2017 and associated such with the claims file. The Board notes that a follow up December 2017 VA Report of General Information reflects that that Veteran's treatment at Shoals began on May 17, 2017, and that there was no evidence of appointments from January 2017 to May 16, 2017. Accordingly, the Board finds that VA's duty to assist has been satisfied regarding the reported VA records and that the available treatment records have been added to the Veteran's claims file. Review of the available VA treatment records during the appeal period also do not reflect any treatment or symptomatology related to a stiff neck, a bilateral foot disorder, or tinea pedis. The Board acknowledges that the VA treatment records reflect that the Veteran's active problems include arthralgia. However, the records do not link that diagnosis to any neck or foot disorder. Instead, May 2017, January 2018, and December 2018 VA treatment records reflect that the Veteran's musculoskeletal and skin symptoms are normal while physical examination revealed a supple neck and normal, dry skin. His ambulation was also noted as normal and these records are otherwise silent as to any foot symptoms, complaints, or disorders. Likewise, a December 2019 VA treatment record reflects that the Veteran's musculoskeletal and skin symptoms are normal while physical examination shows normal skin and a supple neck. An associated skin risk screening form also reflects the Veteran's report that he did not have any open wounds or skin issues and was not currently receiving medical care/treatment for pressure ulcer/skin breakdown. In addition, while it is possible in some cases for service connection to be awarded absent a specific diagnosis if the requisite functional impairment is demonstrated, here the objective evidence fails to establish such functional impairment to the point impacting earning capacity for the Veteran's claimed disorders. See Saunders v. Wilkie, 886 F.3d 1356, 1363, 1368-69 (Fed. Cir. 2018). In other words, the Board finds that a disability is not established for any stiff neck disorder, bilateral foot disorder, or tinea pedis based upon pain alone because functional impairment or an impact on the Veteran's earning capacity as a result of such pain has not been established or shown in the evidence of record. The Board has also considered the Veteran's contentions that he has a stiff neck disorder, bilateral foot disorder, and tinea pedis that is related to service and/or has continued since service. Although the Veteran is competent to describe what he has personally observed or experienced, the issues of whether he has a current stiff neck disorder, bilateral foot disorder, and tinea pedis are complex medical matters that are not capable of lay observation. See, e.g., Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). It is not argued or shown that the Veteran is qualified through specialized education, training, or experience to make such diagnoses. Id. Thus, to the extent that the Veteran's statements are offered as proof of a diagnosed disability or that any current pain is related to any specific injury in service, his statements are not to be considered as competent evidence favorable to his claim. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lastly, the Board finds that a remand for a VA examination that focuses on the Veteran's claimed disorders is not warranted because the McLendon elements necessitating such an examination have not been met. McLendon v. Nicholson, 20 Vet. App. 79 (2009). Specifically, there is no evidence of current diagnoses or persistent or recurrent symptoms of the claimed disabilities. Additionally, the Veteran's March 1970 discharge Report of Medical Examination is silent for any foot, skin, or neck symptoms, complaints, or diagnoses. On his March 1970 discharge Report of Medical History, the Veteran denied having a skin disease, recurrent back pain, or bone joint or other deformity. Although the Veteran reported having or had foot trouble and that the evaluating physician noted he had tinea pedis on his March 1970 discharge Report of Medical History and although a service treatment record (STR) notes that the Veteran was assessed with an upper respiratory infection and that his neck was not supple, without any competent evidence reflecting a diagnosis related to the Veteran's claimed conditions or medical evidence reflecting any complaints or symptoms during the appeal period, a remand for a VA examination is not warranted. In light of the foregoing, the Board finds that the evidence of record persuasively weighs against finding that the Veteran has a current diagnosis of a stiff neck disorder, bilateral foot disorder, and/or tinea pedis, for which service connection can be granted for compensation purposes. As the weight of the evidence is against the claim, entitlement to service connection for these claims is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as secondary to the Veteran's service-connected COPD The Board finds that a remand is warranted in order to obtain outstanding private treatment records related to the Veteran's hypertension. In this regard, during the June 2018 VA examination, the Veteran reported that his hypertension started in 1969 and that he first took medication in 1990. However, the November 2018 VA examination reflects that the Veteran's hypertension was diagnosed in the 1970s and that, per his report, he was prescribed medication for hypertension in the mid-1970s. Moreover, a December 2019 VA treatment record reflects that the Veteran was followed by an outside primary care provider at Center Star Clinic, that all of his medications were prescribed by the outside provider, and that he was on hypertension medication. The Veteran's claims file does not contain any medical treatment records prior to 2017 nor any of the Veteran's private medical records. As any medical records related to the Veteran's hypertension treatment are relevant to his claim and could provide information as to the nature and onset of his disability, a remand is warranted for the AOJ to attempt to obtain the outstanding private treatment records. Additionally, the Board finds that a remand is warranted for a VA opinion to clarify the nature and origin of the Veteran's hypertension. In this regard, the June 2018 VA examiner opined that the Veteran's hypertension is related to service because he was diagnosed with transient hypertension in service and because he continued to experience hypertension thereafter. Review of the Veteran's STRs, however, do not reflect a diagnosis of hypertension. Instead, his March 1970 discharge Report of Medical History reflects that the Veteran reported having high or low blood pressure and that the evaluating physician noted the Veteran had transient high blood pressure on admission. His March 1970 discharge Report of Medical Examination also reflects that the Veteran's blood pressure was 106/60 and does not otherwise include a notation related to hypertension. In August 2018, VA obtained another opinion addressing the Veteran's hypertension claim. The August 2018 VA examiner opined that it is less likely than not that the Veteran's hypertension is related to service because there is no objective evidence to demonstrate that the Veteran's hypertension occurred during service. However, the August 2018 VA examiner failed to consider or address the separation Report of Medical History reflecting a notation of transient high blood pressure on admission. Therefore, the Board finds that a remand is warranted for an addendum VA opinion that accurately considers all the evidence of record. Finally, the Board finds that a remand is also warranted for the Veteran's claim in order to obtain an adequate secondary service-connection opinion. In this regard, a November 2018 VA examiner opined that it is less likely than not that the Veteran's hypertension is proximately due to or the result of his service-connected condition because his hypertension was treated in the mid-1970s and there is no evidence of causation due to a lung condition at that time. The examiner also found there is no aggravation of the Veteran's hypertension by a lung condition because his examination reflected normal blood pressure readings. The Board notes that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Here, the VA examiner did not explain how she found there was no evidence of causation due to the Veteran's service-connected lung disability. As such, a remand is warranted for an addendum secondary service connection opinion that includes adequate rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for a heart disorder, to include an enlarged heart and coronary artery disease, and as secondary to the service-connected COPD The Board also finds that a remand is warranted for the Veteran's claim for service connection for a heart disorder in order to obtain relevant outstanding private treatment records. For instance, at both the July 2018 and November 2018 VA heart conditions examinations, the Veteran reported that he experienced a myocardial infarction in 1993. Additionally, at the July 2018 VA examination, the Veteran reported that he underwent an echocardiogram after his myocardial infarction that showed he had an enlarged heart with congestive heart failure while the November 2018 VA examination reflects that the Veteran was treated for his myocardial infarction at Eliza Coffee Hospital. However, the Veteran's claims file does not contain these cardiology records nor does the evidence show that the AOJ attempted to obtain such records. Therefore, a remand is warranted for the AOJ to attempt to obtain the Veteran's cardiology records including any treatment at Eliza Coffee Hospital. Additionally, another VA examination and opinion is warranted as it is unclear whether the Veteran has a current heart disorder diagnosis. In this regard, the July 2018 VA examination reflects that the Veteran's diagnoses of coronary artery disease and myocardial infarction were only based upon the Veteran's report. Thereafter, the November 2018 VA examiner opined that it is less likely than not that the Veteran's claimed condition is proximately due to or the result of his service-connected COPD because there is no present evidence of an enlarged heart or cardiopulmonary disease based upon the Veteran's recent chest x-ray. However, it is unclear if the November 2018 VA examiner found that the Veteran has a current diagnosis of coronary artery disease as the examiner indicated the Veteran had myocardial infarction and coronary artery disease diagnoses but noted that the Veteran's cardiology records were not available for review. Therefore, the Board finds that a remand is also warranted in order to clarify whether the Veteran has a current heart disorder and whether such is related to service or his service-connected COPD. 3. Entitlement to service connection for bilateral hearing loss, to include as secondary to the service-connected COPD and entitlement to service connection for tinnitus, to include as secondary to the service-connected COPD The Veteran contends that his bilateral hearing loss and tinnitus are related to in-service noise exposure during training exercises or, alternatively, are secondary to his service-connected COPD. He was afforded a VA examination in June 2018 to assess his hearing and tinnitus. The examiner opined that the Veteran's right ear hearing loss is less likely than not related to service because the Veteran reported an onset of hearing decrease 20 years post-separation after exposure to recreational and/or occupational noise exposure. The VA examiner also found that the Veteran's left ear hearing loss preexisted service but was not aggravated beyond normal progression in service because his separation examination showed an improvement in his hearing. Thereafter, in November 2018, the Veteran was afforded another VA examination where the examiner opined that it is less likely than not that the Veteran's hearing loss and tinnitus are secondary to his lung conditions as there is not a nexus between lung conditions and hearing loss and/or tinnitus. The Board finds that the June 2018 hearing loss and November 2018 hearing loss and tinnitus opinions are inadequate. First, the Board acknowledges that the December 1969 entrance examination report shows some degree of hearing impairment in the left ear as the audiometric data for his left ear showed 25 decibels at 500 Hertz, 15 decibels at 1000 Hertz, 10 decibels at 2000 Hertz, and 35 decibels at 4000 Hertz. Although hearing impairment was recorded and the examining physician noted "hearing loss" under the section for summary of defects and diagnoses on the entrance examination report, the examination does not show a hearing loss disability in the left ear for VA purposes. In this regard, under 38 C.F.R. § 3.385, impaired hearing will be considered a disability for purposes of laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Moreover, the United States Court of Appeals for Veterans Claims (Court) has explained that if the degree of hearing loss noted on entrance medical examination does not meet VA's definition of a disability for hearing loss under 38 C.F.R. § 3.385, then the presumption of soundness applies. McKinney v. McDonald, 28 Vet. App. 15, 23 (2016). Here, as the Veteran's audiometric data at his entrance to service for his right and left ear did not meet VA's requirement for hearing loss under 38 C.F.R. § 3.385, the presumption of soundness attaches, and he is presumed sound on entrance. Therefore, an addendum VA opinion is warranted that considers this presumption. Second, in providing a negative nexus opinion, the June 2018 VA examiner did not address the threshold shift in the Veteran's right ear puretone decibels at 4000 Hertz shown upon his discharge examination as compared with his entrance examination. Finally, the November 2018 VA examiner did not provide adequate rationale because the VA examiner did not explain why there was not a nexus between the Veteran's service-connected lung disability and his hearing loss and/or tinnitus nor did the VA examiner address the aggravation element of secondary service connection. The Board notes that when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In light of the above noted inadequacies with the VA opinions of record, a remand is warranted for an addendum VA opinion. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated March 2020. 2. Provide the Veteran an opportunity to identify/submit any outstanding private treatment records related to his claims, to include any hypertension and cardiology treatment records. The evidence reflects that the Veteran's primary care provider is Janna Berry at Center Star Clinic. The evidence also reflects that the Veteran was treated for a myocardial infarction in 1993 at Eliza Coffee Hospital. Request that the Veteran submit the necessary release forms for VA to obtain these records and after obtaining the necessary releases from the Veteran, attempt to obtain all identified treatment. 3. Then, obtain an addendum opinion from an appropriate VA medical professional to determine the nature and origin of the Veteran's hypertension. The need to examine or speak with the Veteran is left to the discretion of the examiner. The Veteran's claims file, to include a copy of this Remand, should be made available to and be reviewed by the examiner. The following opinions are requested: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's hypertension had an onset in service or is otherwise related to service? (b) If the examiner finds that the Veteran's hypertension is not related to his service, how does that reconcile with the June 2018 VA opinion finding that the Veteran's hypertension is related to his service? In providing the above opinions, the VA examiner MUST ADDRESS: (1) the Emergency Room STR reflecting that the Veteran complained of chest pain for the past month and that his blood pressure was 130/90; (2) the Veteran's report on the March 1970 discharge Report of Medical History that he had high or low blood pressure and the evaluating physician's note that the Veteran had transient high blood pressure on admission; and (3) the Veteran's reports that he was diagnosed with hypertension in 1969 or the 1970s. (c) Is it at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is (1) caused by OR (2) aggravated by his service-connected COPD? In rendering his or her opinion, the examiner should address BOTH the causation and aggravation questions in his or her rationale. If aggravation is found, the examiner should state whether there was a medically ascertainable increase in disability regardless of permanence. The examiner should provide a complete rationale for all opinions. A discussion of the relevant facts and medical principles would be of considerable assistance to the Board. 4. Schedule the Veteran for another VA heart conditions examination to address his claim for service connection for a heart disorder, to include an enlarged heart and coronary artery disease. The Veteran's claims file, to include a copy of this Remand, should be made available to and be reviewed by the examiner. The examiner is asked to respond to the following: (a) Identify/diagnosis all heart disorders during the appeal period. The examiner should consider the VA examinations of record indicating the Veteran had diagnoses of myocardial infarction and coronary artery disease in 1993 as well as his reports that he underwent an echocardiogram after his myocardial infarction that showed he had an enlarged heart with congestive heart failure. (b) If the examiner determines that the Veteran does not have a current heart disorder, he or she must explain this finding. (c) If the examiner identifies and/or diagnoses a heart disorder, for each identified disorder, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such had an onset in service or is otherwise related to service, to include the STRs reflecting complaints of chest pain. (d) If the examiner identifies and/or diagnoses a heart disorder, for each identified disorder, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such is (1) caused by or (2) aggravated by the Veteran's service-connected COPD. In rendering his or her opinion, the examiner should address BOTH the causation and aggravation questions in his or her rationale. If aggravation is found, the examiner should state whether there was a medically ascertainable increase in disability regardless of permanence. Additionally, in providing the above opinion, the VA examiner MUST ADDRESS the online article the Veteran submitted in support of his claim entitled Diagnosis of early myocarditis after respiratory or gastrointestinal tract viral infection: insights from cardiovascular magnetic resonance. See October 2018 Correspondence. 5. Obtain an addendum opinion from an appropriate VA medical professional to determine the nature and origin of the Veteran's hearing loss and tinnitus. The need to examine or speak with the Veteran is left to the discretion of the examiner. The Veteran's claims file, to include a copy of this Remand, should be made available to and be reviewed by the examiner. The following opinions are requested: (a) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss had an onset in service, occurred within one year of service, or is otherwise related to service, to include any noise exposure therein. In providing the above opinion, the examiner should focus specifically on whether the noise exposure in service caused any current hearing impairment. The examiner is advised that the Veteran is legally presumed sound at entrance for his bilateral hearing loss and that the absence of any hearing loss during service cannot, standing alone, serve as a basis of a negative opinion. In providing the above opinion, the VA examiner MUST ADDRESS: (1) the threshold shift in the Veteran's right ear puretone decibels at 4000 Hertz as shown upon his discharge examination as compared with his entrance examination; and (2) the online article the Veteran submitted in support of his claim discussing hearing loss and tinnitus, which noted that exposure to loud noises, either in a single traumatic experience or over time can damage the auditory system and result in hearing loss and sometimes tinnitus as well. See October 2018 Correspondence. (b) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss is (1) caused by OR (2) aggravated by the Veteran's service-connected COPD. In rendering his or her opinion, the examiner should address BOTH the causation and aggravation questions in his or her rationale. If aggravation is found, the examiner should state whether there was a medically ascertainable increase in disability regardless of permanence. (c) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's tinnitus (1) had an onset in service, occurred within one year of service, or is otherwise related to service, to include any noise exposure therein; (2) is caused by his service-connected COPD; OR (3) is aggravated by his service-connected COPD. In rendering his or her opinion, the examiner should address BOTH the causation and aggravation questions in his or her rationale. If aggravation is found, the examiner should state whether there was a medically ascertainable increase in disability regardless of permanence. In providing the above opinion, the VA examiner MUST ADDRESS the online article the Veteran submitted in support of his claim discussing hearing loss and tinnitus, which noted that exposure to loud noises, either in a single traumatic experience or over time can damage the auditory system and result in hearing loss and sometimes tinnitus as well. See October 2018 Correspondence. In providing the above opinion, the examiner should focus specifically on whether the noise exposure in service caused any current tinnitus. A complete rationale for all opinions should be provided. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Purcell, Amanda 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.