judge_norm: THOMAS H O'SHAY

text:
��Citation Nr: 21026000

Decision Date: 04/29/21	Archive Date: 04/29/21

DOCKET NO. 15-01 965

DATE: April 29, 2021

ORDER

Entitlement to a rating in excess of 40 percent for service-connected intervertebral disc syndrome (IVDS) since June 30, 2014 is denied.

FINDING OF FACT

Since June 30, 2014, the Veteran s service-connected intervertebral disc syndrome (IVDS) has been manifested by forward flexion of the thoracolumbar spine 30 degrees or less without ankylosis, incapacitating episodes of at least six weeks during the past 12 months, or disc herniation with compression and/or irritation of the adjacent nerve root.

CONCLUSION OF LAW

Since June 30, 2014, the criteria for a rating in excess of 40 percent for service-connected intervertebral disc syndrome (IVDS) have not been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from January 2011 and May 2011, and from October 2011 to November 2012. A November 2018 Board decision remanded the issue on appeal for further development. That development has been accomplished, and the claim has now been returned to the Board for further action. Stegall v. West, 11 Vet. App. 268 (1998).

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. � 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. � 4.7. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary disorders of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. � 4.10.

In evaluating musculoskeletal disabilities, consideration is given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. 38 C.F.R. �� 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. �� 4.40, 4.45, and 4.59. Johnson v. Brown, 9 Vet. App. 7 (1996). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between joint motion pain as opposed to pain that places further limitation of the particular range of motion.

Disability of the musculoskeletal system is the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The examination upon which ratings are based must adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. � 4.40.

Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. The provisions 38 C.F.R. �� 4.40, 4.45, 4.59 should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson, 9 Vet. App. 7.

Under 38 C.F.R. � 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. � 4.40. The provisions of 38 C.F.R. �� 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. �� 4.40, 4.45, 4.59.

The provisions of 38 C.F.R. � 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011).

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

1. Entitlement to a rating in excess of 40 percent for service-connected intervertebral disc syndrome (IVDS) since June 30, 2014.

The Veteran asserts that his service-connected IVDS is more severe than his ratings reflect. Since June 30, 2014, his IVDS has been rated as 40 percent disabling under Diagnostic Code 5243.

The Board notes that Diagnostic Code 5242 and 5243, which are used to evaluate  degenerative arthritis and intervertebral disc syndrome under The General Rating Formula for Diseases and Injuries of the Spine, was revised effective February 7, 2021. As the current appeal was certified to the Board prior to February 7, 2021, the Board will consider both versions of Diagnostic Codes 5242 and 5243 and apply whichever is more favorable to the Veteran.

Prior to February 7, 2021, Diagnostic Code 5242 applied to arthritis of the spine and provides that such is evaluated under the criteria for 38 C.F.R. � 4.71a, Diagnostic Code 5003, which provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate Diagnostic Code for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint group or minor joint group affected by limitation of motion. In the absence of limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations. A 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups without exacerbations.

Since February 7, 2021, Diagnostic Code 5242 applies to degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome. Diagnostic Code 5242 provides that degenerative arthritis other than prost-traumatic arthritis, is to be rated under Diagnostic Code 5003 on the basis of limitation of motion of the affected joint under the appropriate Diagnostic Code for the specific joint or joints involved, and posttraumatic arthritis is to be rated under Diagnostic Code 5010 as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with �4.25.

The General Rating Formula for Diseases and Injuries of the Spine provides the following, in pertinent part: a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id.

Under the rating schedule, Intervertebral Disc Syndrome (IVDS) (preoperatively or postoperatively) is to be rated either under the Formula for Rating Intervertebral Disc Syndrome based on  incapacitating episodes  or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in the higher rating when all disabilities are combined under � 4.25. 38 C.F.R. � 4.71a, Diagnostic Code 5243.

With regard to this method of rating (total duration of incapacitating episodes over the past 12 months), the rating criteria provide that a 10 percent rating is warranted if IVDS is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. 38 C.F.R. � 4.71a, Diagnostic Code 5243. A 20 percent rating is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted if the total duration is at least six weeks during the past 12 months. Id. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. � 4.71a, Diagnostic Code 5243, Note (1).

Additionally, the Board notes that since February 7, 2021, Diagnostic Code 5243 is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. 38 C.F.R. � 4.71a, Diagnostic Code 5243.

There is a large amount of evidence in this case, consisting of mainly medical evidence. The Board notes that it has reviewed the evidence in its entirety but will not be discussing all of it with specificity. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (The Board is presumed to have considered all evidence presented in the record and is therefore not required to specifically discuss every piece of evidence.). The Board will address that evidence which is pertinent to the appeal.

A November 2014 VA examination report noted the Veteran s complaints of worsening lower back pain and the use of steroid injections to manage pain. The Veteran also endorsed inability to stand or walk for a prolonged period, pain upon waking, and use of prescription medication to manage pain. The Veteran also endorsed flare ups described as daily severe pain upon waking and 0 degrees of rage of motion. Forward flexion measured 40 degrees with objective evidence of pain beginning at 10 degrees. Extension measured 10 degrees with objective evidence of pain beginning at 0 degrees. After repetitive testing, the Veteran s forward flexion measured 20 degrees. The examiner noted additional functional loss as less movement than normal, weakened movement, incoordination, pain on movement, instability, disturbance of locomotion, and interference with standing. The examiner also noted spasms and guarding which did not result in abnormal gait. There was no ankylosis of the spine noted. The examiner did diagnose IVDS, but the examiner found the Veteran had no incapacitating episodes over the past 12 months.

A July 2019 VA examination report noted the Veteran s reports of increasing lower back pain and the inability to find a comfortable position which limits his daily activities. Forward flexion measured 90 degrees without evidence of pain on examination. There was no localized tenderness, pain on palpation spasm, guarding, muscle atrophy, or ankylosis, and the Veteran had no further loss of function or range of motion after repetitive testing. The examiner did not diagnosis IVDS.

Medical treatment records throughout the appeal period reflect similar symptoms as noted by the VA examination reports of record. Specifically, the Veteran s lumbar spine disability consistently caused functional loss such as pain, fatigue, and weakness throughout the appeal period. No medical treatment records reflect ankylosis of the spine, incapacitating episodes, or disc herniation with compression and/or irritation of the adjacent nerve root at any time.

After review of the evidence of record for the applicable appeal period, the Board finds that a rating in excess of 40 percent is not warranted at any time during the appeal as the Veteran does not have or has ever been noted to have spinal ankylosis, which is necessary for a rating in excess of 40 percent under Diagnostic 5242. Further, the Veteran s lumbar spine disability does not warrant a rating in excess of 40 percent under Diagnostic Code 5243 for any period as the VA examination reports and medical treatment records for the appeal period do not show, and the Veteran does not allege, any incapacitating episodes due to IVDS as defined in the criteria described with a total duration of at least six weeks during the past 12 months or disc herniation with compression and/or irritation of the adjacent nerve root at any time.

The Veteran is competent to report certain obvious symptoms of his lumbar spine disability but not to identify a specific level of disability. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Competent evidence concerning the nature and extent of the Veteran s service-connected disability has been provided by the VA medical professional who examined him. The medical findings adequately address the criteria under which this disability is evaluated. The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991).

The Board additionally considered whether there are any other Diagnostic Codes which could apply to the Veteran s current thoracolumbar spine disability. Diagnostic Code 5242 allows for a rating under Diagnostic Code 5003 for arthritis. Diagnostic Code 5003 provides for a compensable rating only if one is not available under the general formula. As the Veteran is currently rated as compensable under Diagnostic Code 5243, it is not applicable to this case. The Board therefore finds that there are no other potentially applicable Diagnostic Codes by which a higher rating can be assigned.

The Board further finds that a separate disability rating is not warranted because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his already service-connected lumbar spine disability for which he has not already been granted service connection. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not  duplicative of or overlapping with the symptomatology  of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board notes that the Veteran has previously been granted service connection for right lower extremity radiculopathy associated with his lumbar spine disability.

(Continued on the next page)

Thus, the Board finds that since June 30, 2014 the Veteran s service-connected intervertebral disc syndrome (IVDS) has not more closely approximated the criteria for a rating in excess of 40 percent, and a higher rating for the Veteran s service-connected IVDS is therefore not warranted. Therefore, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. � 5107 (b); 38 C.F.R. � 4.3.

Thomas H. O'Shay

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	N. Peden

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.


series: legacy

judge_norm: C CRAWFORD

judge_role: Veterans Law Judge

disposition: remanded

condition: back

condition: neck

condition: ptsd

text:
Citation Nr: 21027000
Decision Date: 05/04/21	Archive Date: 05/04/21

DOCKET NO. 17-63 181
DATE: May 4, 2021

REMANDED

Entitlement to service connection for a back disorder is remanded.

Entitlement to service connection for a neck disorder is remanded.

Entitlement to service connection for an acquired mental disorder, to include post-traumatic stress disorder (PTSD), to include as secondary to a back disorder, is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army Reserves from May 1999 to October 1999 and from February 2003 to June 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record.

1. Entitlement to service connection for a back disorder.

The Veteran asserts that her back condition is related to her active military service, which included lifting heavy mail bags.  Upon review of all evidence of record, the Board finds that additional development is needed prior to adjudication of the claim.

In this regard, the Veteran has not yet been afforded a VA examination for her back condition.  See McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. � 5103A(d)(2); 38 C.F.R. � 3.159(c)(4)(i).  The Veteran's treatment records show a diagnosis of chronic low back pain, upper back pain and thoracic spine pain.  See February 2015 private treatment records.  The Veteran's service treatment records (STR) do not show any treatment or diagnosis for the Veteran's back.  However, the Veteran reported back pain on her post-deployment health assessment.  The Board also notes that the Agency of Original Jurisdiction (AOJ) was unable to obtain the Veteran's complete STRs.  See July 2016 VA Notice Letter; October 2017 Statement of the Case (SOC).

At the February 2021 Board hearing, the Veteran testified that she has been experiencing back pain since her separation from active service.  The Veteran also submitted a statement from her mother, describing her observations of the Veteran's back pain symptoms since active service.  The Board notes that the evidence of record indicates that the Veteran was involved in a post-service motor vehicle accident, resulting in back pain/strain.  See private treatment records.  The Veteran submitted a January 2019 private opinion, attributing her chronic back condition to her military service.  The Board finds the private opinion inadequate for adjudication purposes as the examiner did not provide a rationale for his opinion.  Nor did he take into consideration the evidence of record indicating that the Veteran's condition may be related to her post-service motor vehicle accident.  As such, an adequate medical opinion is needed prior to adjudication of the Veteran's claim.

Based on the foregoing, the Board finds that the low threshold of McLendon is met and on remand the Veteran should be afforded a VA examination to determine whether her back condition is related to her active military service.  20 Vet. App. at 83-86.

2. Entitlement to service connection for a neck disorder.

The Veteran further asserts that her neck condition is related to her active military service, which included lifting heavy mail bags.  Upon review of all evidence of record, the Board finds that additional development is needed prior to adjudication of the claim.

Specifically, as with the back condition, the Veteran has not yet been afforded a VA examination for her neck condition.  See McClendon, supra.  The Veteran's treatment records show a diagnosis of chronic neck pain.  See January 2019 private treatment record.  The available Veteran's STRs do not show complaints, treatment or a diagnosis of a neck condition in service.  The Veteran submitted a January 2019 private opinion, attributing her neck condition to her military service.  The Board finds the private opinion inadequate for adjudication purposes as the examiner did not provide a rationale for his opinion.  Accordingly, as the low threshold of McLendon is met, an adequate medical opinion is needed prior to adjudication of the Veteran's claim.  See, supra.

3. Entitlement to service connection for an acquired mental disorder, to include PTSD and as secondary to a back disorder.

The Veteran asserts that her mental disability is related to her military service, to include as secondary to her back condition.  See February 2021 Board hearing transcript.

The issue of entitlement to service connection for the Veteran's acquired mental disability is inextricably intertwined with the issue of entitlement to service connection for back disorder, because the outcome of the claim may have a bearing on the Veteran's entitlement to service connection on secondary basis.  See Harris v. Derwinski, 1 Vet. App. 180 (1991) (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).

These matters are REMANDED for the following action:

1. Ask the Veteran to complete a VA Form 21-4142 for Kaiser, Piedmont Healthcare, or any other identified facility to obtain any outstanding pertinent reports associated with the Veteran's lower back, neck, and mental disorder.  Make two requests for the authorized records unless it is clear after the first request that a second request would be futile.

2. Schedule the Veteran for a VA examination to determine the nature and etiology of her back condition.  The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed.  The examination should include any diagnostic testing (including X-rays) or evaluation deemed necessary for the specific claimed disability.

The VA examiner should respond to the following inquiries:

(a) Whether the Veteran has a current diagnosis of a back condition or any impairment in her earning capacity due to back pain.

(b) If a diagnosis of a back condition is made, whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's back condition had its onset in, or is otherwise related to, active duty or active duty for training.

(c) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's back condition is due to an injury sustained while on inactive duty for training.

(d)  If the Veteran's back pain is not attributable to a known clinical diagnosis, is it at least as likely as not that the reported symptom is a manifestation of an undiagnosed illness or part of a medically unexplained multi-symptom illness under 38 C.F.R. � 3.317.

A complete rationale must be provided for all opinions expressed.  The rationale must consider and discuss the pertinent evidence of record, to include the Veteran's and her mother's lay statements, which include attributing her condition to carrying heavy mail bags.  In providing this opinion, the examiner should also address the Veteran's complaint of back pain on her post-deployment health assessment in the STRs, January 2019 private opinion and private treatment records indicating that the Veteran was involved in a post-service motor vehicle accident.

3. Schedule the Veteran for a VA examination to determine the nature and etiology of her neck condition.  The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed.  The examination should include any diagnostic testing (including X-rays) or evaluation deemed necessary for the specific claimed disability.

The VA examiner should respond to the following inquiries:

(a) Whether the Veteran has a current diagnosis of a neck condition or any impairment in her earning capacity due to neck pain.

(b) If a diagnosis of a neck condition is made, whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's neck condition had its onset in, or is otherwise related to, active duty or active duty for training.

(c) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's neck condition is due to an injury sustained while on inactive duty for training.

(d) If the Veteran's neck pain is not attributable to a known clinical diagnosis, is it at least as likely as not that the reported symptom is a manifestation of an undiagnosed illness or part of a medically unexplained multi-symptom illness under 38 C.F.R. � 3.317.

A complete rationale must be provided for all opinions expressed.  The rationale must consider and discuss the pertinent evidence of record, to include the Veteran's and her mother's lay statements, which include attributing her condition to carrying heavy mail bags.  In providing this opinion, the examiner should also address the January 2019 private opinion and private treatment records indicating that the Veteran was involved in a post-service motor vehicle accident.

4. After completing the above, accomplish any development deemed necessary, e.g., scheduling a VA psychiatric examination to identify any disorder(s) present and to obtain a VA nexus medical opinion, and readjudicate the claim of entitlement to service connection for an acquired mental disability, to include

PTSD, to include as secondary to a back disorder.

C. CRAWFORD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Kuzniar, 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.


judge_norm: A C MACKENZIE

disposition: granted

benefit: smc

text:
Citation Nr: 21028000
Decision Date: 05/10/21	Archive Date: 05/10/21

DOCKET NO. 18-46 293A
DATE: May 10, 2021

ORDER

Entitlement to service connection for a spinal cord injury (SCI), to include as secondary to a service connected back condition, is granted.

Entitlement to service connection for loss of use of the right upper extremity, to include as secondary to the SCI, is granted.

Entitlement to service connection for loss of use of the left upper extremity, to include as secondary to the SCI, is granted.

Entitlement to service connection for loss of use of the right lower extremity, to include as secondary to the SCI, is granted.

Entitlement to service connection for loss of use of the left lower extremity, to include as secondary to the SCI, is granted.

Entitlement to service connection for a bladder condition, to include as secondary to the SCI, is granted.

Entitlement to service connection for a bowel condition, to include as secondary to the SCI, is granted.

Entitlement to special monthly compensation (SMC) on the basis of a need for regular aid and attendance (A&A) is granted.

FINDINGS OF FACT

1. The Veteran's SCI was caused by the Veteran's service-connected back condition.

2. The Veteran's SCI caused the Veteran's quadriplegia of all four extremities.

3. The Veteran's SCI caused the Veteran's bladder condition.

4. The Veteran's SCI caused the Veteran's bowel condition.

5. The competent evidence of record shows that, as a result of the Veteran's service-connected disabilities, the Veteran is in need of regular aid and attendance.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a SCI have been met.  38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.303, 3.304, 3.310.

2. The criteria for entitlement to service connection for loss of use of all four extremities have been met.  38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.303, 3.304, 3.310.

3. The criteria for entitlement to service connection for a bladder condition.  38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.303, 3.304, 3.310.

4. The criteria for entitlement to service connection for a bowel condition have been met.  38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.303, 3.304, 3.310.

5. The criteria for entitlement to SMC on the basis of A&A have been met.  38 U.S.C. �� 1114, 5107; 38 C.F.R. �� 3.102, 3.350, 3.352.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Coast Guard from October 1970 to October 1974.  The Veteran and his wife testified before the Board of Veterans' Appeals (Board) and the undersigned Veterans Law Judge in March 2021.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C. � 1110; 38 C.F.R. � 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service.  38 C.F.R. � 3.303(d).  Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  See 38 C.F.R. � 3.310(a).  Furthermore, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  See 38 C.F.R. � 3.310(b).

The Veteran is currently service connected for a back condition and left lower extremity radiculopathy secondary to the back condition.

Dr. J.M.C provided a nexus opinion in April 2017 VA treatment notes.  The Veteran's fall in June 2016, resulted in a SCI and paralysis.  Patients with radiculopathy have diminished sensation in the area that corresponds with the injury.  The diminished sensation can result in impaired perception and the inability to coordinate muscular function as commonly required for situations related to balance.  This diminished sensation can therefore lead to the inability to restore balance and cause falls which result in significant injury.  In addition to the radiculopathy, the Veteran's impaired lumbar mobility and function further predisposed the Veteran to loss of balance and the inability to recover from mild eccentric movements of his limbs or back.  Therefore, the examiner determined the proximate cause of the Veteran's fall and resulting SCI with paralysis was related to the service-connected conditions.  The Board notes that this opinion is highly detailed and contains a thorough description of the pertinent medical history.

The Veteran was provided with a VA neck conditions examination in April 2017.  The Veteran was diagnosed with a cervical spine injury, quadriplegia, and neurogenic bladder and bowel.  In the opinion, the examiner noted the "condition claimed is less likely than not" a result of the Veteran's service-connected condition.  Then the examiner noted the "SCI is at least as likely as not" caused by or a result of the service-connected back condition.  The examiner continued in the rationale by noting the Veteran did not complain of imbalance at the anytime before the fall, and per the Veteran, the fall was accidental.  The examiner found the worsening back condition with arthropathy may have caused some imbalance; and due to the Veteran's loss of consciousness after the fall, he may not have remembered the sequence of events before the fall.  The examiner concluded by stating it was mere speculation to state the Veteran might have had some temporary imbalance due to the back condition.  The VA examiner also provided a negative nexus opinion for the Veteran's bladder, bowel and quadriplegia conditions, finding the conditions were residuals of the SCI, and not the back condition.

In reviewing the evidence, the Board finds the positive opinion in the VA treatment records was more probative than the VA opinion due to the extensive rationale based upon the Veteran's medical evidence.  See Nieves-Rodriguez v. Peake,22 Vet. App. 295 (2008).  The VA examiner provided conflicting opinions for the SCI issue, and the examiner was not able to resolve the SCI issue without resorting to mere speculation.  Thus, the benefit of the doubt is afforded to the Veteran, and the Board finds that service connection for a SCI is established.

As the decision herein finds service connection for the SCI is warranted, service connection is also warranted for the residual conditions of quadriplegia, a bladder condition, and a bowel condition.  The VA examiner determined the conditions were all secondary and residuals of the SCI.  Thus, service connection for quadriplegia, a bladder condition, and a bowel condition have been established, and the claims are granted in full.

Aid and Attendance

Special monthly compensation is an additional level of compensation to Veterans (above the basic levels of compensation payable based on disability ratings of 0 to 100 percent) for various types of anatomical losses or levels of impairment due solely to service-connected disabilities.  See 38 U.S.C. � 1114(k-s).

SMC for A&A is payable when, as a result of a service-connected disability, the Veteran has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity, or is so helpless (due to physical or mental incapacity), that he requires the aid of another person to perform the personal functions required in everyday living.  38 U.S.C. � 1114(l); 38 C.F.R. �� 3.350(b), 3.351(b), 3.352(a).  There is no schedular threshold for the award of SMC when granted on the basis of a need for regular aid and attendance.

Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others.  In making such determinations, consideration is given to: inability of a claimant to dress or undress himself; to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which by reasons of the particular disability cannot be done without aid; inability to feed himself through the loss of coordination of upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, that requires care and assistance on a regular basis to protect claimant from the hazards or dangers incident to his daily environment.  "Bedridden" will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice.  It is not required that all the disabling conditions enumerated above be found to exist before a favorable rating may be made.  The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole.  It is only necessary that the evidence establishes that the claimant is so helpless as to need regular aid and attendance, not that there is a constant need.  38 C.F.R. � 3.352(a).

The probative evidence of record reflects that the Veteran meets the criteria for the need for aid and attendance due to his service-connected disabilities.

As an initial matter, service connection is in effect for several conditions, to include quadriplegia, a bladder condition, and a bowel condition.  The April 2017 VA examiner noted the Veteran needs total assistance for all activities of daily living and mobility.  The Veteran's wife described the care she provides due to the Veteran's service-connected conditions during the March 2021 hearing.  The Veteran's wife had to change his catheter once a month due to his bladder condition.  She had to manage his bowel care daily, she monitored his skin for bed sores, she managed his medications, she made his meals, and she fed him.

In view of the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds the competent and credible evidence of record reflects that the Veteran requires the regular aid and attendance of another person due to the service-connected disabilities granted herein.  Thus, he is entitled to SMC, and the claim is granted in full.

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. N. Quarles, 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.


judge_norm: KRISTI L GUNN

condition: cancer

condition: tinnitus

text:
Citation Nr: 21029000
Decision Date: 05/12/21	Archive Date: 05/12/21

DOCKET NO. 17-31 962
DATE: May 12, 2021

ORDER

Entitlement to service connection for pharyngeal cancer, to include associated residuals, claimed as throat cancer and jaw cancer, is granted.

Entitlement to service connection for hearing loss is granted.

Entitlement to service connection for tinnitus is granted.

FINDINGS OF FACT

1. The Veteran participated in a "radiation-risk" activity, and service connection for pharyngeal cancer, is warranted on a presumptive basis.

2. The evidence of record is at least in equipoise as to whether the Veteran's hearing loss is etiologically related to service.

3. The evidence of record is at least in equipoise as to whether the Veteran's tinnitus is etiologically related to service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for pharyngeal cancer, on a presumptive basis, are met. 38 U.S.C. �� 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.309(d).

2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303, 3.309, 3.385.

3. The criteria for service connection for tinnitus are met. 38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1958 to May 1961.

This matter comes before the Board of Veteran's Appeals (Board) from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

This matter was previously before the Board in January 2019 when the claims of service connection for hearing loss and tinnitus were remanded for development. The Board finds the January 2019 remand directives as to those claims have been substantially complied with, and the matters are again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998).

In the same January 2019 Board decision, the Board also denied the claims of service connection for throat cancer and jaw cancer, as well as service connection for chronic pain. The Veteran disagreed with the denial as to his claims of service connection for throat and jaw cancer and appealed to the United States Court of Appeals for Veterans Claims (Court). The Board notes the Veteran did not appeal the denial of service connection for chronic pain. In December 2019, the Court granted a Joint Motion for Remand (JMR) where the parties requested vacatur of the January 2019 Board decision as to the issues of service connection for throat cancer and jaw cancer. Those claims have been remanded by the Court pursuant to the JMR for re-adjudication and are now before the Board. The claim of service connection for chronic pain, secondary to cancer, is no longer on appeal as it was decided by the Board in January 2019 and not included in the JMR presented to the Court. Accordingly, the Board has no jurisdiction over the claim of service connection for chronic pain.

In October 2020, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record.

The Board notes that following the hearing, in October 2020, the Veteran's representative requested a copy of the hearing transcript. The Board acknowledges that in an Appellate Brief, associated with the claims file in November 2020, the Veteran's representative referenced the Hearing Transcript and page numbers. Thus, it is reasonable to conclude that the Veteran's representative had access to the hearing transcript on or before November 2020. Nevertheless, the transcript was provided in April 2021 to the representative, as she requested. See correspondence of April 2021. The Board notes that the letter providing the Veteran's transcript provides 30 days to request changes to the transcript. Those 30 days have not yet expired. However, as the Board is granting the benefits sought in full, there is no reason to further delay the decision on the present appeal, as the fully favorable decision herein results in no prejudice to the Veteran.

Service Connection

Generally, service connection may be established for a disability resulting from disease or injury in or aggravated by active service. 38 U.S.C. � 1131; 38 C.F.R. � 3.303 (a). To establish service connection for a disability, there must be (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. � 3.303 (d).

1. Entitlement to service connection for pharyngeal cancer, to include associated residuals (claimed as throat cancer and jaw cancer)

The Veteran seeks service connection for cancer, claimed as jaw cancer and throat cancer. In favor of his claim, the Veteran asserts that he was exposed to ionizing radiation at Camp Hanford and other carcinogenic agents during service. See hearing transcript. The Board has recharacterized the Veteran's claims, for the reasons explained below, as service connection for pharyngeal cancer, to include associated residuals.

Generally, service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service-connected in radiation-exposed veterans under 38 C.F.R. � 3.309(d). See 38 U.S.C. � 1112(c). Second, service connection can be established under 38 C.F.R. � 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. � 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. � 3.303(d) by showing that the claimed disability was incurred during or aggravated by service without regard to the statutory presumptions and special development procedures outlined in 38 C.F.R. � 3.311. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).

Before the Board addresses the claim on the merits, a summary of the Veteran's medical diagnoses as noted throughout the available records is warranted, as to better understand the reasons for the Board's recharacterization of the claims.

In September 2010, the Veteran visited his physician for a lesion on the right lower gum, behind the last tooth, characterized by the physician as an exophytic lesion. His physician noted the Veteran was 21 years status post chemoradiation to that same area. See medical records for September 2010. A diagnosis of carcinoma of the lower gum was rendered, confirmed with a biopsy that revealed squamous cell carcinoma in the mouth, specifically the right lower gum. See biopsy report of September 2010.

In October 2010, the Veteran underwent a suprahyoid neck dissection with resection of the carcinoma and mobilization of a submental flap. In the surgical reports, the Veteran's diagnosis was noted as oral cancer of the right alveolar ridge. See medical records for October 2010. Following complications with the skin flap used to cover the defect created by the excision of the cancerous tissue, the Veteran was noted to have one area of granulation on the medial aspect of the incision in December 2010. See medical records for December 2010.

In March 2011, the Veteran underwent a laryngoscopy and biopsy which revealed keratinizing squamous carcinoma, characterized as "clinically recurrent floor of the mouth cancer." See pathology report of March 2011. A clinical note dated March 2011 noted that this new lesion was a probable recurrence of the resected carcinoma on the right lower floor of the mouth in October 2010. That same month, the Veteran underwent another surgical intervention. The procedure to remove the new lesion was a radical en bloc resection of the tongue, floor of mouth, horizontal mandible and suprahyoid neck on the right side; including reconstruction of the mandible and a free flap to correct the oral defect  harvested from the left thigh. See medical records for March 2011.

In April 2011, one of the Veteran's private surgeons subscribed a letter wherein he noted that the Veteran had been battling oral/jaw cancer. See letter subscribed by Dr. J, associated with the claims file in May 2014.

Another letter, subscribed by Dr. J, in April 2014, noted the Veteran was diagnosed with oral/jaw cancer and his battle with the condition. The surgeon opined that the Veteran's cancers were due to his exposure to ionizing radiation in the 1960's. See letter by Dr. J, dated April 2014, and associated with the claims file in May 2014.

VA medical records characterize the Veteran's cancer as malignant neoplasm of the head, face, and neck, in the problem list. See medical records for August 2011 and February 2013.

A private medical opinion pertaining to the Veteran's cancer associated with the claims file in November 2020 noted the Veteran's medical history, including the findings disclosed above, and characterized the Veteran's cancer as pharyngeal cancer. The physician, Dr. C, provided no rationale for characterizing the Veteran's cancer as pharyngeal. Nonetheless, the physician after providing an analysis of the environmental exposures the Veteran experienced at Camp Hanford and other relevant social history, opined that the Veteran's pharyngeal cancer was at least as likely as not caused by exposure to radiation and other carcinogenic agents while in service, at Camp Hanford.  See medical opinion by Dr. C, dated August 2020 and associated with the claims file in November 2020.  The Board finds this medical opinion adequate and assigns it high probative value.

The Board notes the "pharynx" is "the musculomembranous passage between the mouth and posterior nares and the larynx and esophagus." Dorland's Illustrated Medical Dictionary 1427 (32d ed. 2012). "Pharyngeal" is the adjective meaning pertaining to the pharynx. Id. The "pharynx," or "throat," has three parts. "The part above the level of the soft palate is the nasopharynx, which communicates with the auditory tube. The lower portion consists of two sections: the oropharynx, which lies between the soft palate and the upper edge of the epiglottis, and the laryngopharynx, which lies below the upper edge of the epiglottis and opens into the larynx and esophagus." Dorland's at 1427. Relevant to this appeal, the oropharynx includes the "[b]ack one-third of the tongue." Oropharyngeal Cancer Treatment, NIH National Cancer Institute, https://www.cancer.gov/types/head-and-neck/patient/adult/oropharyngeal-treatment-pdq (last visited April 27, 2021). Additionally, the Board notes that squamous cell carcinoma has been characterized as "the most common oral or pharyngeal cancer (and the most common at head and neck sites in general)." The Merck Manual 492 (19th ed. 2011).

Thus, the record reflects that the Veteran's cancer has been characterized as oral cancer, gum cancer, and pharyngeal cancer. The specific diagnosis is of importance because it determines whether certain presumptions for ionizing radiation exposure apply.

Here, the Board affords high probative value to Dr. C's characterization of the Veteran's cancer as pharyngeal cancer in consideration of her expertise, experience, her service as a Radiation Health Officer and her national recognition as an expert on the matter; as contained in the medical opinion dated August 2020. Additionally, the Board notes that Dr. C's characterization of the Veteran's cancer as "pharyngeal" does not seem to arise from ignorance of the record, as she detailed all the findings of "oral cancer" or "gum cancer" in the medical history provided in her opinion. Rather, it seems that in her professional medical judgement, the Veteran's cancer met the requirements to be considered "pharyngeal cancer." It is well established that medical examination reports must be read as a whole. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). Accordingly, the Board has recharacterized the Veteran's claims of service connection for jaw cancer and throat cancer, as service connection for pharyngeal cancer, to include associated residuals, as diagnosed in the medical opinion above mentioned- submitted by the Veteran through his representative for consideration. Clemons v. Shinseki, 23 Vet. App. 1 (2009).

In arriving at this conclusion, the Board has considered the Veteran's representative's assertions contained in Appellate Brief, associated with the claims file in November 2020. Particularly, the representative argued that the diagnoses of "oral or throat[,] and jaw cancer" are not at issue citing the January 2019 Board decision; which has been vacated by the Court. He also noted the private medical opinion by Dr. C wherein she opined that the Veteran's pharyngeal cancer was at least as likely as not caused by his exposure to radiation and other carcinogenic agents. Here, while the diagnosis of cancer is not at issue, the specific type of cancer the Veteran has been diagnosed with, on the other hand, is not as clear. Thus, the Board has afforded high probative value to Dr. C's characterization of the Veteran's cancer as pharyngeal for the purposes of this decision and recharacterized the claims accordingly.

38 C.F.R. � 3.309(d) lists cancer of the pharynx as a type of cancer for which presumptive service connection is available. Cancer of the jaw and cancer of the mouth are not type of cancers for which presumptive service connection is available under 38 C.F.R. � 3.309(d). Thus, for the presumptions established in 38 C.F.R. � 3.309(d) for pharyngeal cancer to apply in the present case, the Board must determine whether the Veteran qualifies as a "radiation-exposed" Veteran pursuant to 38 C.F.R. � 3.309 (d)(3).

Under 38 C.F.R. � 3.309(d)(3), a "radiation-exposed Veteran" is defined as a Veteran who, while serving on active duty, active duty for training, or inactive duty training, participated in a "radiation-risk activity." "Radiation risk activities" include onsite participation in a test involving the atmospheric detonation of a nuclear device; participation in the occupation of Hiroshima or Nagasaki between August 6, 1945, and July 1, 1946; being a prisoner of war in Japan (or service in Japan immediately after internment) with opportunity for exposure comparable to occupation forces in Hiroshima or Nagasaki; service for at least 250 days before 1992 at gaseous diffusion plants in Paducah, Kentucky, or Portsmouth, Ohio, or at K25 area at Oak Ridge, Tennessee; service before January 1, 1974, on Amchitka, Island, if exposed to ionizing radiation during duty related to Long Shot (1965), Milrow (1969) or Cannikin (1971) underground nuclear tests; and service in a capacity which, if performed as an employee of the Department of Energy, would qualify the individual for inclusion as a member of the Special Exposure Cohort under section 3621(14) of the Energy Employees Occupational Illness Compensation Program Act of 2000 (Act). See 38 C.F.R. � 3.309(d)(3)(ii).

The Veteran asserts that he participated in a radiation-risk activity due to his service at the Hanford site in Washington. Thus, he contends that his service at the Hanford site in Washington should be considered as "radiation-risk activity" pursuant to 38 C.F.R. � 3.309(d)(3)(ii)(E).

Members of the Special Exposure Cohort (SEC) as established in the Energy Employees Occupational Illness Compensation Program Act of 2000, are employees with at least one of the 22 specified cancers prescribed by the statute who worked for a specified period of time at one of the SEC work sites. The statutory SEC classes describe employees who worked at gaseous diffusion plants in Paducah, Kentucky, Portsmouth, Ohio, or Oak Ridge, Tennessee for a total of at least 250 days before February 1, 1992, and were monitored for radiation exposure with dosimetry badges or had jobs with similar exposures to those monitored and/or those who worked before January 1, 1974, on Amchitka Island, Alaska and were exposed to radiation related to the Long Shot, Milrow or Cannikin underground nuclear tests. The Act also authorizes the Secretary of Health and Human Services to add other classes of employees to the SEC. See 42 U.S.C. 7384 (14). In December 2009, the Secretary of Health and Human Services added a new class of employees to the SEC. The new class of employees was defined as:

"All employees of the Department of Energy, its predecessor agencies, and its contractors and subcontractors who worked at the Hanford site in Richland, Washington, from October 1, 1943 through June 30, 1972, for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of employees included in the Special Exposure Cohort."

This designation became effective in January 2010. See Notice, 75 Fed. Reg. 3469 (January 21, 2010); see also Department of Labor, EEOICPA Bulletin No.10-04 (2010).

Thus, for the Veteran to be found to have participated in a radiation-risk activity, pursuant to 38 C.F.R. � 3.309(d)(3)(ii)(E); the evidence would need to show that he has a type of cancer considered in the statute and that he worked at the Hanford site (or any other site eligible for SEC consideration) for at least 250 work days.

The Veteran's service treatment records (STRs) and military personnel records have been associated with the claims file.

The Veteran's personnel records show that in February 12, 1960 he was assigned to Camp Hanford for "AIT" or Advanced Individual Training. This training lasted 1 month. These records also show that in March 1960 he was assigned a new duty, reflecting a change in rank after completion of AIT, at Hanford Camp. This new assignment lasted 8 months. See Record of Assignments, contained in the Military Personnel Record, associated with the claims file in July 2014.

Thus, the Veteran's military personnel records show that the Veteran was at Hanford for 9 months, from February 12, 1960 until November 28, 1960. In other words, the Veteran was stationed at Hanford for more than 250 days. Additionally, the Veteran's cancer, characterized a pharyngeal cancer, is one of the cancers considered in the regulation. Accordingly, the Board finds that the Veteran participated in a radiation-risk activity pursuant to 38 C.F.R. � 3.309(d)(3)(ii)(E) due to his service at the Hanford site in Washington lasting more than 250 days and his pharyngeal cancer diagnosis.

Thus, as the Veteran has been found to have participated of a "radiation-risk activity"; he is to be considered a "radiation-exposed" Veteran and his pharyngeal cancer is subject to presumptive service connection under 38 C.F.R. � 3.309(d).

Accordingly, for the reasons explained above, service connection for pharyngeal cancer, to include associated residuals, on a presumptive basis is warranted, as the Veteran has been found to have participated of a radiation risk activity during service pursuant to 38 C.F.R. � 3.309(d)(3)(ii)(E). In reaching this determination, the Board has made no finding as to the current severity of the Veteran's cancer or any associated residual. However, the Board notes that the evidence of record suggests the Veteran has scars pertaining to the surgical interventions for his cancer, difficulty talking due to his surgeries, has experienced disruptions with feeding and has received his nutrition through a feeding tube due to his cancer residuals.

2. Entitlement to service connection for hearing loss

The Veteran seeks service connection for hearing loss. In favor of his claim, the Veteran asserts that his hearing loss is related to hazardous noise exposure while in service. See hearing transcript.

Hearing loss for VA purposes is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The Veteran's DD-214 shows that his military occupational specialty (MOS) was as a guided missile instrument electrician.  The Board finds that in-service noise exposure has been established as consistent with the types, places, and circumstances of the Veteran's active service.

The Veteran's service treatment records show that he was only administered a hearing whisper test for his induction into service. See Report of Medical Examination for induction, dated January 1958. During his service, the Veteran was administered hearing examinations in May 1958, December 1959, and June 1960. See STRs. Additionally, his report of medical examination for separation, dated April 1961 shows whisper test findings and all audiometer findings show the value "0" for all frequencies. See Report of medical examination for separation, dated April 1961.

Pertinently, the Board notes that service department audiometric tests prior to October 31, 1967 were in ASA (American Standard Association) units and require conversion to ISO (International Organization for Standardization) units. The ASA units generally assigned lower numeric scores to hearing loss than do the ISO units. Conversion to ISO units is accomplished by adding 15 dB to the ASA units at 500 Hertz, 10 dB to the ASA units at 1000 Hz, 2000 Hz, and 3000 Hz, and 5 dB to the ASA units at 4000 Hz. See VA Interim Issues 21-66-16, 21-66-17 (June 6, 1966); 10-66-20 (June 8, 1966); DM&S Manual M-2, Part XVIII, Chapter 4, paragraph 4.02, Use of International Standards Organization (ISO) for Audiological Examinations.

In March 2013, the Veteran was administered a Hearing Loss and Tinnitus Disability Benefits Questionnaire (Hearing Loss DBQ). In this examination, the Veteran was found to have bilateral hearing loss for VA purposes. Following the examination, the examiner opined that the Veteran's hearing loss was not at least as likely as not related to service. In favor of this opinion, he noted that the Veteran's hearing ability on separation from service in 1961 was normal bilaterally. In January 2019, the Board found this medical opinion inadequate for adjudication purposes and remanded the claim for a new opinion on the matter.

In October 2019, the Veteran was re-administered another Hearing Loss DBQ. Following the examination, the examiner opined that the Veteran's hearing loss was less likely than not related to service. In favor of this opinion, the examiner noted having reviewed medical records, and noted that although the Veteran had been exposed to hazardous noise during service, that he separated from service with hearing thresholds well within the normal range. Additionally, the examiner noted the Veteran's cancer treatment and acknowledged that patients who undergo radiation therapy for head and neck cancer appear more likely to experience hearing loss. The examiner determined that the Veteran's hearing loss could be seen as secondary to his cancer condition. See etiology opinions in the Hearing Loss DBQ, dated October 2019. Notably, although this examiner opined that the Veteran separated from service with hearing thresholds within the normal range; the examiner did not convert the ASA units into ISO units for purposes of this opinion. Additionally, the examiner seems to suggest that because the hearing loss did not manifest during a period of service, that there is no relation between the Veteran's service and his hearing loss. He bases this finding on an executive summary, dated 2006, suggesting prolonged delay in the onset of noise-induced hearing loss is unlikely. Further, the examiner seems to suggest or speculate that the Veteran's hearing loss is secondary to his cancer treatment, but does not specify whether the hearing loss was caused by the cancer treatment or aggravated by it; although he noted the Veteran's report of really noticing his hearing difficulty after coming out of a coma in 2011.

In November 2020, a private medical opinion was associated with the claims file. The physician noted having reviewed the Veteran's military, VA and civilian medical records. He also noted the Veteran's noise exposure during service and the lack of hearing protection issued to the Veteran. The physician opined that it is at least as likely as not that the Veteran's hearing loss is related to his service and his exposure to acoustic trauma. See medical opinion by Dr. F, dated November 2020. The Board finds this medical opinion adequate and assigns it high probative value.

Accordingly, based on the above and for the reasons explained below, the Board finds that the preponderance of the evidence is at least in equipoise as to whether the Veteran's current hearing loss is etiologically related to his service. Resolving doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted.

The Veteran has hearing loss in both ears for VA purposes. Accordingly, his claim surpasses the first prong of the Shedden service connection test; a current disability.

Further, the Board has already conceded his exposure to hazardous noise during service in view of the Veteran's MOS and his credible and competent lay statements. Thus, his claim also surpasses the second prong of the Shedden service connection test; the in-service incurrence.

The only question remaining before the Board is whether there is sufficient evidence linking the Veteran's current hearing loss to his noise exposure during service; the nexus requirement of the Shedden service connection test. Here, the Board notes that as the Veteran was only administered a whisper test for his induction into service, there is no baseline to compare his separation examination audiometric examination. Additionally, there is a positive medical opinion linking the Veteran's hearing loss to his service as well as a negative VA medical opinion indicating the Veteran's hearing loss is not related to his service but could be secondary to his cancer treatment. Thus, there is evidence in favor and against the finding that the Veteran's hearing loss is etiologically related to his service. The Board acknowledges that the VA medical opinion, dated October 2019, suggests the Veteran's hearing loss could be secondary to his cancer, which has been granted service connection in this Board decision. However, as the medical evidence is in relative equipoise as to whether his hearing loss is related to his service on a direct basis, the Board need not explore this alternative theory of entitlement on a secondary basis.

As the preponderance of the evidence is in equipoise as to whether the Veteran's current hearing loss is related to service; the Board resolves doubt in the Veteran's favor and finds that service connection, on a direct basis, for hearing loss is warranted.

3. Entitlement to service connection for tinnitus

The Veteran seeks service connection for tinnitus. In favor of his claim, the Veteran asserts that his tinnitus is related to his hazardous noise exposure during service. See hearing transcript.

In the Hearing Loss DBQ dated March 2013 the Veteran's tinnitus was found to be less likely than not related to service because the Veteran's hearing ability was normal at separation. In favor of this opinion the examiner reasoned that tinnitus is associated with hearing loss. See Hearing Loss DBQ of March 2013. The examiner did not opine whether the Veteran's tinnitus could be directly related to his service, but rather only opined that the Veteran's tinnitus is associated with his hearing loss.

In the Hearing Loss DBQ dated October 2019, the examiner opined that the Veteran's tinnitus is less likely than not related to service because the evidence of record does not show that tinnitus was present during or immediately after his service period. See Hearing Loss DBQ dated October 2019. The Board finds this medical opinion inadequate for adjudication purposes as it relied on the absence of contemporaneous medical evidence of an in-service incurrence to provide a negative opinion.

In November 2020, a private physician opined that the Veteran has tinnitus and that is it as likely as not that his tinnitus originated in service, due to his exposure to acoustic trauma. See private medical opinion of November 2020. The Board finds this medical opinion adequate and assigns it high probative value.

Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's tinnitus is related to service; resolving doubt in his favor, the Board finds that service connection for tinnitus is warranted.

The Board notes that tinnitus is "a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane"). Butts v. Brown, 5 Vet. App. 532, 540 (1993). The Board observes that in Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As the Veteran has reported he currently suffers from tinnitus, the Board finds that the first prong of the Shedden service-connection test has been surpassed; a current disability.

The Board has also conceded the Veteran's in-service hazardous noise exposure. Thus, his claim also surpasses the second prong of the Shedden service-connection test; the in-service incurrence.

The remaining question before the Board is whether there is sufficient evidence of record linking the Veteran's current tinnitus to his service, the third prong of the Shedden service connection test- the nexus requirement.

Here, the Board finds that the evidence is at least in equipoise as to whether the Veteran's tinnitus is related to his service. Particularly, the Board notes that VA medical opinions of record note that the Veteran's tinnitus is related to his hearing loss and not his service, while a private medical opinion links the Veteran's tinnitus to his service.

Thus, as there is evidence for and against the finding that the Veteran's tinnitus is related to his service; the Board finds that the preponderance of the evidence is at least in equipoise. Resolving doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted, on a direct basis. As the Board has found that there is sufficient evidence to grant the benefit sought on a direct basis, the Board will not address the theory of entitlement on a secondary basis, raised by the evidence of record.

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Gonzalez-Maldonado

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.


condition: heart

condition: headache

text:
Citation Nr: 22001000
Decision Date: 01/07/22	Archive Date: 01/07/22

DOCKET NO. 16-19 316
DATE: January 7, 2022

REMANDED

Entitlement to service connection for chronic fatigue is remanded.

Entitlement to service connection for heartburn and indigestion is remanded.

Entitlement to service connection for headaches is remanded.

REASONS FOR REMAND

The Veteran had active military service from October 1998 to October 1991.  He testified before the undersigned Veterans Law Judge during a June 2019 hearing.  This matter is on appeal from August 2013 and September 2014 rating decisions.

The case was remanded by the Board of Veterans' Appeals (Board) in October 2019, and then denied in a May 2020 decision.  The Veteran thereafter appealed the Board's decision of these issues to the United States Court of Appeals for Veterans Claims (Court).  In an Order dated in May 2021, the Court granted a Joint Motion for Partial Remand (JMPR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision as to these issues, and remand the case for readjudication in accordance with the JMPR.

1. Entitlement to service connection for chronic fatigue is remanded.

The Board cannot make a fully-informed decision on the issue of service connection for chronic fatigue because while chronic fatigue syndrome has not been diagnosed, no VA examiner has provided an opinion regarding whether the Veteran's symptoms are sufficient to demonstrated a currently disability pursuant to Saunders v. Wilkie, 886 F.3d. 1356 (Fed. Cir. 2018).  Remand for a new examination is necessary.

2. Entitlement to service connection for heartburn and indigestion is remanded.

The Board cannot make a fully-informed decision on the issue of service connection for heartburn and indigestion because while the Veteran has current diagnoses, no VA examiner has provided an opinion regarding whether those diagnoses constitute a medically unexplained chronic multisymptom illness where either the etiology or pathophysiology is inconclusive as explained in Stewart v. Wilkie, 30 Vet. App. 383 (2018).  Remand for a new examination is necessary.

3. Entitlement to service connection for headaches is remanded.

The Board cannot make a fully-informed decision on the issue of service connection for headaches because no VA examiner has provided an opinion addressing whether the Veteran's reported headaches in service are related to his current migraines.  A December 2019 VA examiner provided a negative opinion, relying on no objective records of evidence of migraine headaches during service.  Remand for a new examination that adequately considers the Veteran's reports is necessary.

The matters are REMANDED for the following action:

1. In accordance with the provisions of 38 C.F.R. � 3.159(c)(1), make efforts to obtain all records identified by the Veteran, including any outstanding VA treatment records.

2. Schedule the Veteran for a VA examination by an appropriate clinician to determine whether his reported symptoms, including fatigue, reach the level of a functional impairment of earning capacity.  The most up-to-date Disability Benefits Questionnaire (DBQ) should be utilized.  The examiner is requested to review the record and offer an opinion as to whether the Veteran's reported symptoms, including fatigue, reach the level of a functional impairment of earning capacity as defined by Saunders, supra.

If the examiner determines that the Veteran's fatigue symptoms reaches the level of a functional impairment of earning capacity, they should opine as to whether such symptoms are at least as likely as not (at least an approximate balance of positive and negative evidence) related to his military service, including his service in the Southwest Asia theater of operations.

A complete rationale should be given for all opinions and conclusions expressed.

3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the etiology of any diagnosed heartburn and indigestion.  The most up-to-date DBQ should be utilized.  The examiner should characterize each of the Veteran's claimed heartburn and indigestion as belonging to one of the four disability patterns:

(a.) an undiagnosed illness,

(b.) a diagnosable but medically unexplained chronic multisymptom illness (MUCMI) of unknown etiology,

(c.) a diagnosable chronic multisymptom illness with a partially understood etiology and pathophysiology, or

(d.) a disease with a clear and specific etiology.

For each claimed disability for which there is a diagnosis, the examiner must identify:

(e.) the diagnosis.

(f.) whether the diagnosis has conclusive, partially understood, or unknown etiology.

(g.) whether the disease has a conclusive, partially understood, or unknown pathophysiology.

If the examiner determines that the Veteran's heartburn and ingestion have a conclusive etiology, please state what the etiology is and provide the reasoning for the conclusion.

If the examiner determines that the Veteran's disability pattern is either a diagnosable chronic multisymptom illness with a partially explained etiology OR a disease with a clear and specific etiology and diagnosis, then the examiner should offer an opinion as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the disorder is related to the Veteran's military service, including his service in the Southwest Asia theater of operations.

A complete rationale should be given for all opinions and conclusions expressed.

4. Schedule the Veteran for a VA examination by an appropriate clinician to determine the etiology of any diagnosed headaches.  The most up-to-date DBQ should be utilized.  For any headaches diagnosed, the examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that any diagnosis is related to the Veteran's military service, including his service in the Southwest Asia theater of operations.

The examiner should consider the Veteran's reports of headaches that began in service and continued to the present.  The examiner is reminded that the Veteran is competent to report having headaches since service without corroborating evidence.  The examiner is also reminded that the absence of "chronicity of care," in and of itself, is not a valid basis for a negative medical conclusion.  A complete rationale should be given for all opinions and conclusions expressed.

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. Barstow, 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.


judge_norm: THERESA M CATINO

text:
Citation Nr: 22002000
Decision Date: 01/13/22	Archive Date: 01/13/22

DOCKET NO. 16-63 289
DATE: January 13, 2022

ORDER

Entitlement to service connection for bilateral hearing loss is granted.

FINDING OF FACT

Affording the Veteran the benefit of the doubt, his bilateral hearing loss symptoms began during his active service.

CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309, 3.385.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from January 1966 to January 1968.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2015 and March 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).  In July 2021, the Board remanded this appeal for further development. The Board finds there has been substantial compliance with the prior Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Veteran has not raised any issues in the current appeal that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017).  This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c).

Service connection for bilateral hearing loss

Service connection is granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. � 1110; 38 C.F.R. � 3.303. Service connection requires competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection is presumed where there are either chronic symptoms shown in service or continuity of symptoms since service for diseases identified as "chronic" in 38 C.F.R. �� 3.303(b), 3.309(a). Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). When all evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski  1 Vet. App. 49 (1990).

Sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. � 3.309(a). Thus, the presumptive service connection provisions of 38 C.F.R. � 3.303(b) apply in this portion of the appeal. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) 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.

The Veteran contends that he has bilateral hearing loss related to his military service, when he worked as a Hercules missile crewman. He reports that he was exposed to noise from weapons fire, ships, and missiles. See August 2021 VA Examination. He describes bilateral hearing loss since service that has worsened in more recent years, and his statements are credible and consistent with his service.

Service personnel records confirm the Veteran's military occupational specialty (MOS) as an Hercules missile crewman. The Board finds that his competent testimony is consistent with, and certainly possible in light of, his documented MOS. Accordingly, the Board concludes that there has been continuity of bilateral hearing loss symptoms since service. 38 C.F.R. � 3.303(b).

Multiple VA examinations are of record which include audiological evaluations showing a bilateral hearing loss disability per 38 C.F.R. � 3.385. See August 2020 VA Examination (which shows hearing loss at 3000 Hertz, with 50 decibels in the right ear and 40 decibels in the left ear).

In this regard, the Board notes that a June 2015 VA examination found hearing loss for VA purposes in only the Veteran's right earand that the examiner opined that the Veteran's bilateral hearing loss was less likely than not caused by, or a result of, his military noise exposure. The examiner noted the Veteran's reports of exposure to high levels of noise during service but relied on his normal enlistment and separation audiological evaluations as the basis for the negative opinion.

Another VA examinationdated in August 2020is of record. While this examination documents the Veteran's bilateral hearing loss for VA purposes, no etiology opinion was given by the examiner.

In an addendum opinion dated in August 2021, an examiner recorded the Veteran's reports of in-service noise exposure related to his duties as a missile crewman and recorded his exposure to weapons fire, ship noise, and missiles. The examiner conceded the Veteran's exposure to hazardous noise levels while in service but concluded to the contrary that he did not have a hearing injury while in service. The examiner relied on the normal audiological testing and absence of a significant threshold shift during service in finding that the Veteran did not have a hearing injury during service. Relying on the absence of a hearing loss disability during service, the examiner opined it was not at least as likely as not that the Veteran's current hearing loss is related to his military service. Despite noting the Veteran's in service hazardous noise exposure, the examiner did not appear to consider such in providing an opinion and focused on the absence of documented hearing loss during service in providing an opinion.

The August 2021 VA examiner was also asked to consider whether the Veteran's hearing loss was proximately due to, a result of, or aggravated beyond its natural progression by his service-connected tinnitus. The examiner indicated that it was not at least as likely as not aggravated beyond its natural progression, but in providing supporting rationale the examiner copied the same rationale provided in addressing direct service connection.

Accordingly, an addendum opinion was obtained in November 2021. The addendum opinion was requested for the examiner to address again whether the Veteran's hearing loss was proximately due to, a result of, or aggravated beyond its natural progression by his service-connected tinnitus with supporting rationale. The examiner indicated that hearing loss and tinnitus are not necessarily mutually occurring and have varying causes, and that hearing loss does not cause tinnitus or vice versa. The examiner then opined, based on the Veteran's normal hearing during service, that it was less likely than not that the Veteran's tinnitus could have aggravated his hearing loss.

The August 2021 negative nexus opinion and November 2021 addendum opinion are of little probative value, as the examiners failed to take the Veteran's lay statements about his noise exposure into account in providing the requested opinions. Instead, the examiners relied on the absence of documented hearing loss in service in providing the negative opinions. In this regard, the Board points out that the absence of a hearing loss disability in service is not in and of itself fatal to a claim for service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Despite recording the Veteran's reports of noise exposure during service, the examiners did not accord his contentions any consideration in providing the requested opinions.

Lay evidence, when credible, is competent to establish the presence of continuity of symptoms for a claimed disability during, and since, separation from active service. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As the evidence of record in the current appeal reflects acoustic trauma in service as well as the Veteran's competent and credible assertions of the onset of bilateral hearing loss symptoms in service continuing to the present, the evidence is at least evenly balanced in showing that his current bilateral hearing loss onset during service. Thus, the Board resolves all reasonable doubt in his favor. As the evidence is in relative equipoise, the benefit-of-the-doubt rule applies, and entitlement to service connection for bilateral hearing loss is granted. 38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.

THERESA M. CATINO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Goreham

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.


judge_norm: H SEESEL

text:
Citation Nr: 22003000
Decision Date: 01/20/22	Archive Date: 01/20/22

DOCKET NO. 16-40 195
DATE:  January 20, 2022

REMANDED

Entitlement to service connection for back injury (also claimed as back pain) is remanded.

REASONS FOR REMAND

The Veteran, who is the appellant in this case, served honorably in the United States Marine Corps from February 1959 to May 1960. This matter comes before the Board of Veterans Appeals (Board) from an August 2015 rating decision by the Veterans Affairs (VA) Regional Office (RO) in Jackson, MS.

The Veteran testified at a videoconference hearing before the undersigned in November 2021. A transcript of the hearing is associated with the claims file.

This matter has been advanced on the docket pursuant to 38 C.F.R. � 20.902(c).

Entitlement to service connection for back injury (also claimed as back pain) is remanded.

Although the Board regrets the additional delay, a remand is required in this case to ensure that there is a complete record upon which to decide the issue of service connection for back pain, so that the Veteran is afforded every possible consideration.

On examination of the claims file, there are two gaps in medical records that appear. The Veteran was injured in service during field exercises in Naples, Italy in 1960, which he believes started his current back problems. At his November 2021 Board hearing he stated that he has had private care for back pain since service prior to seeking treatment with VA. There is a gap in the medical records from 1960 to January 2015. It is not clear when the Veteran first sought medical care with the VA, or when he last received care through private insurance. Clarification should be sought with the Veteran and his representative, and an opportunity given to the Veteran to get VA assistance seeking such missing records. There are also no new VA medical records in the file since August 2016, which should be requested and added to the claims file.

Additionally, an addendum is needed to clarify the August 2015 medical opinion rationale.

The Veteran was diagnosed with a lumbosacral sprain with subsequent diagnosis of psychogenic musculoskeletal reaction. He now has spinal stenosis diagnosed on MRI, which was not present on previous MRI from 2007. His current symptoms are not related to the lumbar strain and psychogenic back pain the patient had while enlisted.

The August 2015 rationale says what diagnosis the Veteran had in service, what diagnosis he currently has and concludes they are unrelated without further rationale. A layman explanation is needed as to why the examiner concludes that what the Veteran had in service is unrelated to his current disability.

The matter is REMANDED for the following action:

1. Request that the Veteran submit relevant private treatment records, for his back pain between 1960 and 2015, or complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, so that VA may obtain these records. At least two attempts should be made to get these records, even if the Veteran believes it would be futile.

The RO should contact the Covington CBOC and Memphis VAMC, to obtain all the Veteran's medical records from August 2016 to present and ask the Veteran if he received treatment from any VAMC prior to January 2015 and get those records. All efforts to obtain VA records should be fully documented, and the VA facility should provide a negative response if records are not available.

2. Provide the Veteran's claims file to the examiner who provided the VA examination in August 2015, or if unavailable, to another VA examiner. If the examiner concludes that the Board's questions cannot be answered without an examination, one should be scheduled. The examiner must review the Veteran's claims file to include this remand order and the Report of Hospitalization from U. S. Army Hospital, Frankfurt, Germany from March 1960, which was added to the file in June 2015.

The examiner is asked to provide a response to the following:

(Continued on the next page)

Is the current back disability at least as likely as not (50 percent probability or greater) related to service, including the event that resulted in the Veteran's March 1960 hospitalization in service?

A complete rationale should be provided for any opinion expressed.

H. SEESEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Black, Jeffrey W.

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.


judge_norm: MICHAEL MARTIN

disposition: dismissed

text:
Citation Nr: 22004000
Decision Date: 01/26/22	Archive Date: 01/26/22

DOCKET NO. 18-21 103
DATE: January 26, 2022

ORDER

Whether there is new and material evidence to reopen a claim for service connection for bilateral surfer's knots (claimed as bilateral foot injuries) is dismissed.

FINDING OF FACT

In January of 2022, VA was notified that the Veteran died in May of 2021 during the pendency of the appeal.

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this appeal at this time. 38 U.S.C. � 7105; 38 C.F.R. � 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1969 to September 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

Unfortunately, the Veteran died during the pendency of the appeal. As a matter of law, appellants' claims do not survive their deaths. Therefore, this appeal must be dismissed for lack of jurisdiction. 38 U.S.C. � 7104(a); 38 C.F.R. � 20.1302.

There are, however, provisions in place to allow for an eligible person to take the Veteran's place in his appeal in order to get a final decision. This process is called substitution. The request to be substituted must be filed within one year of the Veteran's death. 38 C.F.R. � 3.1010(b). To file a request for substitution, you may use VA Form 21P-0847, "Request for Substitution of Claimant Upon Death of Claimant," which can be found online here: https://www.vba.va.gov/pubs/forms/VBA-21P-0847-ARE.pdf.

The completed form may be submitted electronically via ACCESSVA. The web address for ACCESSVA is https://eauth.va.gov/accessva/?cspSelectFor=dmhs.  Alternatively, you may mail the completed form to:

Department of Veterans Affairs

Pension Intake Center

PO Box 5365

Janesville, WI 53547-5365

(Continued on the next page)

You may also submit the form directly to your nearest VA regional office. To find a VA regional office nearest you go to https://www.va.gov/find-locations/?facilityType=benefits.

Please note that only certain persons are eligible for substitution. A person eligible for substitution includes "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title ...."  38 U.S.C. � 5121A; 38 C.F.R. � 3.1010(a). There is a helpful factsheet that explains who is eligible for accrued benefits here: https://benefits.va.gov/BENEFITS/factsheets/general/Accrued.pdf

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Smith, 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.