Citation Nr: 1736617	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  10-22 844	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to service connection for left ulnar nerve entrapment.

2.  Entitlement to service connection for right ulnar nerve entrapment.

3.  Entitlement to service connection for a right knee disability, to include as secondary to the Veteran's service connected back disability.

4.  Entitlement to service connection for a left knee disability, to include as secondary to the Veteran's service connected back disability.

5.  Entitlement to service connection for a right shoulder disability

6.  Entitlement to service connection for a neck disability.

7.  Entitlement to service connection for bilateral pes planus.

8.  Entitlement to service connection for left foot neuroma.

9.  Entitlement to service connection for bilateral foot fungal disability.

10.  Entitlement to service connection for right carpal tunnel syndrome.

11.  Entitlement to service connection for left carpal tunnel syndrome.

12.  Entitlement to a compensable rating for bilateral hearing loss. 

13.  Whether the reduction in evaluation for degenerative disc disease (DDD) of the lumbar spine from 40 percent to 20 percent was proper.

14.  Entitlement to a rating in excess of 40 percent for DDD of the lumbar spine.


ATTORNEY FOR THE BOARD

A. D. Jackson, Counsel


INTRODUCTION

The Veteran served on active duty from June 1967 to June 1978.

This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Newark, New Jersey and Baltimore, Maryland. Jurisdiction of the claims file is now with the RO in New York, New York.  

This case was remanded in November 2013 and December 2014. 

In a January 2013 supplemental statement of the case (SSOC), the RO introduced the issue of service connection for a left shoulder disability.  VA manual provisions suggest that there will be a rating decision that addresses the claim for service connection; however, no such rating decision was issued with respect to the claim for service connection for a left shoulder disability.  Further, 38 C.F.R. § 19.31 states that in no case will a SSOC be used to announce decisions by the Agency of Original Jurisdiction (AOJ) on issues not previously addressed in the SOC or to respond to a notice of disagreement on newly appealed issues that were not addressed in the SOC.  See 38 C.F.R. § 19.31 (a).  In the current case, the proper mechanism for appealing service connection for a left shoulder disability would have been to file a timely notice of disagreement to a rating decision; however, the Veteran did not successfully do so.  As such, it was improper (and a violation of 38 C.F.R. § 19.31 (a)) for the January 2013 SSOC to announce a decision on the issue of service connection for a left shoulder disability when such issue was never previously addressed in a SOC (or a rating decision).  Therefore, the Board finds that the issue of service connection for a left shoulder disability is not before the Board in appellate status at this time, and the matter is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9 (b); see 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 CFR Parts 3, 19, and 20).

The Board notes that the issue of an increased rating  for the back disability, is part and parcel of the Board's review of the issue for restoration of the 40 percent rating for this disorder (the Veteran initially filed a claim for an increased rating in March 2007).  In light of the restoration of the 40 percent rating, the Board will review the issue of an increased rating. 

The issues of service connection for a neck disability and bilateral knee disabilities, as well as higher ratings for bilateral hearing loss and a back disability are REMANDED to the AOJ.  VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1.  The Veteran's skin disorder to include tine pedis had its onset during his active service.

2.  The Veteran has not been shown to have a current right shoulder disability.  

3.  The Veteran has not been shown to currently have pes planus.  

4.  It has not been shown, by credible competent evidence, that the Veteran has a left foot neuroma related to service.  

5.  It has not been shown, by credible competent evidence, that the Veteran has left or right wrist ulnar neuropathy is related to service.  Bilateral ulnar neuropathy has not been shown to be present within 1 year following separation from service.

6.  It has not been shown, by credible competent evidence, that the Veteran's left and right carpal tunnel syndrome (CTS) is related to service.  Bilateral CTS has not been shown to be present within 1 year following separation from service.

7.  Improvement of the Veteran's DDD of the lumbar spine is not shown by a preponderance of the evidence.


CONCLUSIONS OF LAW

1.  Resolving reasonable doubt in his favor, the Veteran's currently diagnosed tine pedis was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016).

2.  The criteria for entitlement to service connection for a right shoulder disability have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2016).

3.  The criteria for entitlement to service connection for pes planus have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2016).

4.  The criteria for entitlement to service connection for left foot neuroma have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2016).

5.  Left wrist ulnar neuropathy was not incurred in or aggravated by service, nor may ulnar neuropathy be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016).

6.  Right wrist ulnar neuropathy was not incurred in or aggravated by service, nor may ulnar neuropathy be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016).

7.  CTS of the left extremity was not incurred in or aggravated by service, nor may CTS be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016).

8.  CTS of the right extremity was not incurred in or aggravated by service, nor may CTS be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016).

9.  The reduction in the rating assigned for DDD of the lumbar spine, from 40 to 20 percent, effective March 12, 2007, was not proper; restoration of the 40 percent rating is warranted.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.105, 3.344, Diagnostic Codes 55293-5292 (2003); 5243-5242 (2008) (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Assist and Notify

There is no indication in this record of a failure to notify or assist the Veteran to include examination and obtaining medical records.  See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015); see also Sullivan v. McDonald, 815 F.3d 786, 793(Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)).  

During the course of his appeal, the RO has requested that he identify any outstanding records, VA or private.  The Board notes that the Veteran reports that he received 1978 VA treatment at the facility in East Orange, New Jersey, for his bilateral foot fungal disease.  In June 2016, the RO notified the Veteran those records are unavailable.  Moreover the Board is granting service connection for this disability.

The Veteran maintains that he should be provided additional VA examination and opinion regarding the claims for service connection that are reviewed below.  The Board considered whether additional examination and opinion were necessary in this case.  However, there is no duty on the part of VA to provide any additional assistance such as requesting a medical examination or opinion.  Here, after due notification, advisement, and assistance to the Veteran under the VCAA, the record does not contain persuasive evidence to suggest that he has a right shoulder disability, pes planus, left foot neuroma, bilateral CTS, or bilateral ulnar neuropathy related to military service.  Thus, there is no evidence on file establishing that the aforementioned claimed condition may be associated with the claimant's active military service.  38 U.S.C.A § 5103A(d); cf. Charles v. Principi, 16 Vet. App. 370 (2002).  Under such circumstances, there is no duty to provide an examination or to obtain a medical opinion.  See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); (the Veteran's conclusory lay statement is insufficient to trigger VA's duty to provide an examination with an opinion). 

Thus, the Board finds that the duty to assist him with his claims has been met.  38 U.S.C.A. § 5103A.

General Laws and Regulation Pertaining to Service Connection

Service connection means that a veteran has a current disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or 'medical nexus' between the current disability and the disease or injury incurred or aggravated during service.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a).

For the chronic diseases listed in 38 C.F.R. § 3.309(a), if the chronic disease manifested in service, then subsequent manifestations of the same chronic disease at any date after service, no matter how remote, will be entitled to service connection without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service ('intercurrent causes'). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in § 3.309(a)).  If the evidence is not sufficient to establish chronicity of the disease at the time of service, then a continuity of symptoms after service must be shown to grant service connection under this provision.  Id.; Walker, 708 F.3d at 1338-39 (observing that a continuity of symptoms after service itself 'establishes the link, or nexus' to service and also 'confirm[s] the existence of the chronic disease while in service or [during a] presumptive period').  

Entitlement to service connection for bilateral foot fungal disability

Service treatment records show that medical care was provided for various skin disorders to include fungus infection of the left thumb (October 1975) tinea cruris of the face and groin (March 1977); seborrheic dermatitis (April 1977); and tinea pedis (May 1977).  

The Veteran reported treatment for fungal infection subsequent to service discharge since 1978.  

VA dermatology examination was conducted in August 2001.  There was noted maceration and fissuring between the toes as well as subungual hyperkeratosis of the right big toenail.  The diagnosis included tinea pedis and onychomycosis.

VA outpatient records in November 2005 also include diagnoses of tinea pedis.  However, a fungal culture was considered negative in June 2005.  The examiner that the Veteran had obvious dermaphytosis.  However, since then the Veteran has been receiving treatment for persistent tinea pedis.  

A VA examination was conducted in December 2007.  The diagnosis was eczematous dermatitis.   

During service, the Veteran was treated for tinea pedis.  Furthermore, the Veteran has intimated continuous problems and self-treatment since service discharge. Accordingly, in light of the Veteran's medical history including inservice treatment for tinea pedis, as well as his statements, the Board resolves doubt in his favor and finds that service connection for tinea pedis and eczematous dermatitis of the feet, is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Entitlement to service connection for a right shoulder disability and pes planus, 

The Veteran's problem with his claim for service connection for a right shoulder disability and pes planus arises with the first element of the Holton/Shedden analysis, which is evidence of current disability.  He has provided no medical evidence to show current diagnoses of the claimed disorders.  

The service treatment records (STRs) do not show any reports, complaints, findings, or diagnoses regarding the shoulders or pes planus.  There were no shoulder or foot disabilities noted on the May 1967 enlistment examination.  The feet and upper extremities were considered normal on the report of the March 1978 examination that was conducted prior to separation.  The Veteran specifically denied foot trouble, swollen or painful joint, painful trick shoulder as well as any joint or bone deformity.

Reviewing post service VA outpatient records, since 1999, the Veteran has undergone numerous podiatric examination and there is no reported diagnosis of pes planus.  During treatment for his non-service connected cervical spine disabilities, the Veteran has reported pain extending from his shoulder, which has been diagnosed as cervical radiculopathy, but there is no indicated right shoulder disability.  Service connection is generally not in order for "mere" pain, rather a diagnosed disorder is generally necessary to establish entitlement.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed.Cir. 2001).  Mere pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.  

As explained, the most fundamental requirement for any claim for service connection is that the Veteran has the condition claimed.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability.  Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  A current disability means a disability shown by competent medical evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

In summary, there is no competent evidence of current right shoulder disability or pes planus upon which to predicate a grant of service connection for the claimed disabilities.  The Veteran has neither provided nor identified any medical evidence showing he actually has a right shoulder disability or pes planus.  The VA examiners listened to his complaints and symptoms regarding foot and shoulder pain, however, there are no diagnoses of pes planus or a right shoulder disability.  Without proof of a current disability, there can be no valid claim.  The appeal is denied. 

Entitlement to service connection for a right shoulder disability, pes planus, left foot neuroma, bilateral CTS, and bilateral ulnar neuropathy

The Veteran further claims that service connection is warranted for a left foot neuroma, bilateral CTS and bilateral ulnar neuropathy.  There is no disputing the Veteran currently has a left foot neuroma, bilateral CTS and bilateral ulnar neuropathy.  

VA outpatient records dated in June 2001 noted the Veteran's reported history of left elbow pain and numbness.  He indicated onset in August 2000.  He further stated that his symptoms began subsequent to cardiac catherization.  In reporting his history, it was also noted that a mass was excised from his neck in April 2000 at a private facility.  There was noted neck-numbness from the base of the neck radiating to the shoulder.  A July 2001 VA electromyograph (EMG) report notes the diagnosis of left ulnar neuropathy.   Another VA EMG was performed in May 2008, in response to the Veteran's complaints of neck pain with radiation to the right shoulder as well as complaints of numbness and weakness in the 4-5th fingers in each hand.  The diagnoses included bilateral CTS and bilateral ulnar neuropathy.

VA outpatient records dated in October 2005 show the Veteran complained of a 9-12 month history of a painful soft tissue mass on the right foot.  He also reported left foot pain.  The eventual diagnosis was left foot neuroma.  

Nevertheless, the problem with the Veteran's claims arises with the second and third elements of Holton/Shedden analysis described above.  Concerning the second element, evidence of incurrence or aggravation of a disease or injury in service, in reviewing the e-file, there are no complaints, findings or diagnoses during service pertaining to a left foot neuroma, bilateral CTS or bilateral ulnar neuropathy, including at time of separation from service.  According to the medical history provided by the Veteran at the March 1978 separation examination, he specifically denied foot trouble, tumor, cyst, growth, or neuritis.  The feet as well as the vascular and the neurological systems were considered clinically normal.  This is probative evidence against his claims.  See Struck v. Brown, 9 Vet. App. 145 (1996).

Further, there is no clinical evidence of neurological problems within a year of the Veteran's discharge from service in June 1978, let alone manifested to a compensable degree of at least 10-percent disabling.  So to the extent, it may not be presumed that either CTS or bilateral ulnar neuropathy were incurred in service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

In fact, it was not until many years later that any of the claimed conditions were first shown, either by complaint or objective clinical finding.  As mentioned, left elbow complaints reportedly began in August 2000 and left foot neuroma was found in October 2005.  At the earliest, this is over 21 years after service discharge, an extended period of time.  This, too, is probative evidence against the claims.  See Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability).

Most importantly, though, after reviewing the e-folders for the pertinent medical and other history there is no nexus opinion by any medical professional that links either the left foot neuroma, bilateral CTS or bilateral ulnar neuropathy to service.  The Veteran has not provided any competent medical evidence of a nexus between current disability and disease or injury during service, as required by Holton/Shedden analysis.  

To attribute the Veteran's a left foot neuroma, bilateral CTS and bilateral ulnar neuropathy to military service without objective medical evidence of inservice treatment, or continuity of treatment after service discharge, or a medical opinion providing a nexus, would require excessive speculation.  Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection for to a left foot neuroma, bilateral CTS and bilateral ulnar neuropathy.  And since the preponderance of the evidence is against the claims, there is no reasonable doubt to be resolved in his favor, and these claims must be denied.  38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Whether the reduction in evaluation for DDD of the lumbar spine was proper

Specific legal standards govern whether the reduction in the rating for the Veteran's DDD of the lumbar spine (back disability) was justified by the evidence.  A veteran's disability rating will not be reduced unless an improvement in the disability is shown to have occurred.  38 U.S.C.A. § 1155. 

Where a disability rating has been continued for at least five years at the same level, under 38 C.F.R. § 3.344, if there have occurred changes in essential medical findings or diagnosis, that case is to be reviewed and adjudicated so as to produce the greatest degree of stability of disability evaluation.  In determining the propriety of a previous rating, the entire record as to medical history should be considered to ascertain whether the most recent examination is indeed a full and complete depiction of the level of disability.  38 C.F.R. § .344 (a).  Likewise, in such cases, provided doubt remains, after according due consideration to all the evidence developed by the several items discussed in the preceding paragraph (section 3.344(a)), the rating agency will continue the rating in effect under specified procedures.  38 C.F.R. § 3.344 (b). 

In this case, the 40 percent rating assigned to the Veteran's service connected back disability was in effect from June 12, 2002, to March 12, 2007, which was less than five years (although the reduction in rating was based on an August 2007 VA examination).  Therefore, the provisions of 38 C.F.R. §§ 3.344 (a) and (b), which govern the reduction of protected ratings in effect for five years or more, do not apply in this case. 

Accordingly, reexaminations disclosing improvement, physical or mental, in these cases will warrant reduction in rating.  38 C.F.R. § 3.344 (c).  The determination in a reduction rating case must include the proper application as to the standard of proof.  In rating reduction cases, VA must establish, by a preponderance of evidence, that the reduction was warranted.  Brown v. Brown, 5 Vet. App. 413, 421 (1993); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995).  A reduction in rating must be based upon review of the entire history of the disability.  Brown, 5 Vet. App. at 420; see also 38 C.F.R. §§ 4.1, 4.2, 4.10.  VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough and adequate examinations.  Faust v. West, 13 Vet. App. 342, 349 (2000).  Finally, it must be determined whether the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work.  Brown, 5 Vet. App. at 421.  There must be an actual improvement in the disability and not just a failure to meet the requirements of a rating under the currently assigned Diagnostic Code. 

In sum, in any rating-reduction case, VA must determine (1) whether the evidence reflects an actual change in the disability based upon review of the entire recorded history of the condition; (2) whether the examination reports reflecting such change are based upon thorough examinations; and (3) whether any improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work.  Murphy v. Shinseki, 26 Vet. App. 510, 516-17 (2014) (citing Brown, 5 Vet. App. at 421; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13)

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Turning to the relevant evidence of record, the RO in June 2003 granted the 40 percent rating for the back disability based on VA examination in January 2003.  At the examination, the Veteran reported his medical history.  He reported daily pain that was aggravated by lifting overhead activity.  The pain radiated down the right lower extremity to the foot.  There was paresthesia in the right lower extremity.  A report of an August 2001 X-ray of the lumbar spine showed DDD from T-12 to S-1 levels. 

On examination, the Veteran walked without a limp.  There was good tip toe and heel walking.  The Trendelenburg signs were negative.  There was no spasm or tenderness of the lumbar spine.  Flexion was 30 degrees; extension to 10 degrees; and side bending to 10 degrees, bilaterally.  The deep tendon reflexes were symmetrically depressed.  There was hypesthesia to pinprick on the sole of the left foot.  Straight leg raising was 90 degrees when sitting and 60 degrees when supine.  When kneeling, lumbar flexion was 30 degrees.  The diagnosis was low back strain with mild symptom magnification.  The RO found that the Veteran's symptoms approximated the criteria for a 40 percent rating.  The RO considered and rated the Veteran's service connected DDD of the lumbar spine under Diagnostic Codes 5293-5292.  

In March 2008, the RO considered and rated the Veteran's service connected DDD of the lumbar spine under Diagnostic Codes 5243-5242.  In assigning the 20 percent rating in March 2008, the RO relied on the August 2007 VA examination findings.  At the August 2007 examination, the Veteran reported his medical history.  He reported daily pain that was worse with sitting, standing, bending, and walking.  There was no radiation of pain down the legs.  He was not undergoing physical therapy.  There was no weakness, bowel or bladder changes reported.  He did not report any interference with his job; however, the back disability interfered with daily activities.  He stated that he was unable to play basketball.  He did not have any incapacitating episodes, flare-ups, problems with repetitive use, or sensation changes in the lower extremities.  On neurological examination, deep tendon reflexes were even at 1/4.  Muscle tone was normal.  The Babinski's was downgoing bilaterally.  The straight leg raise test was negative bilaterally.  Motor strength was 5/5 distally and proximally in both lower extremities.  There were no deformities, axial tenderness, or pain to palpation.  There was decreased range of motion in all planes.  The Veteran complained of pain with range of motion in all planes.  

Flexion was 50 degrees; extension was 10 degrees; and side right bending was 15 degrees, side left bending was 10 degrees, right rotation was 15 degrees, and left rotation was 20 degrees.  After repetitive motion of the spine there was no additional loss of joint function due to fatigue or lack of coordination.  The RO found that the Veteran's symptoms approximated the criteria for a 20 percent rating.

When comparing the findings of the August 2007 VA examination, which prompted the reduction, to the prior VA examinations and treatment records, the Board finds that the rating reduction was improper.  Notably, the physical examination findings in the January 2003 and August 2007 examinations are not dissimilar.  Specifically, each examiner found no change in the diagnosis of DDD of the lumbar spine.  While there was no noted evidence of radiating pain there was pain on all motion.  The Veteran's flexion may have increased in the August 2007 examination to 50 degrees from 30 degrees, but the examiner does not detail when pain began on motion or the point at which the Veteran experienced functional loss.  As noted above, VA must establish, by a preponderance of evidence, that the reduction was warranted in accordance with § 3.344.  Brown, 5 Vet. App. at 421.  The Board finds that this burden has not been carried by VA because the finding from the 2003 to 2007 examination reports do not show "improvement" in accordance with § 3.344(c).  In light of this, the evidence does not reflect an improvement in the Veteran's ability to function under the ordinary conditions of life and work.  Brown, 5 Vet. App. at 421.  Accordingly, restoration of the 40 percent rating, effective March 12, 2007, is warranted.  38 U.S.C.A. § 1155; 38 C.F.R. § 3.105. 


ORDER

Entitlement to service connection for bilateral tinea pedis and eczematous dermatitis is granted.

The claim for service connection for a right shoulder disability is denied.

The claim for service connection for a pes planus is denied.

The claim for service connection for a left foot neuroma is denied.

The claim for service connection for left CTS is denied.

The claim for service connection for right CTS is denied.

The claim for service connection for left ulnar neuropathy is denied.

The claim for service connection for right ulnar neuropathy is denied.

The reduction to 20 percent being improper, restoration of a 40 percent rating for service connected DDD of the lumbar spine is granted, effective March 12, 2007.


REMAND

In July 2017, the Board received a statement from the Veteran, in which he reports that he underwent a cervical laminectomy in June 2017 and he was also scheduled for a lumbar laminectomy in August 2017.  These records should be obtained.  

The Board remanded the claim for service connection for bilateral knee disabilities for VA medical opinion regarding whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's bilateral knee disability (if any) is aggravated by his service connected back disability.  Unfortunately, the DBQ form shows that the examiner was asked to respond to a different question than requested by the Board.  The DBQ form shows that the question was phrased as whether:

The claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. 

Another opinion is needed to determine whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's bilateral knee disability (if any) is aggravated by his service connected back disability.  

The RO should schedule VA examinations to determine the current severity of his bilateral hearing loss and back disability.

Accordingly, the case is REMANDED for the following action:

1. Make arrangements to obtain the Veteran's treatment records from Baylor Scott and White, Temple, Texas dated in August 2017.  Also, records related to the June 2017 cervical laminectomy.

2. Thereafter, schedule the Veteran for an audiological VA examination to determine the severity of his bilateral hearing loss. The e-file, including a complete copy of this remand, must be made available to and reviewed by the examiner. The examination should include any diagnostic testing or evaluation deemed necessary. All pertinent findings must be reported and the appropriate DBQs should be filled out for this purpose, if possible.

3. Schedule the Veteran for an orthopedic VA examination to determine the severity of his back disability. The e-file, including a complete copy of this remand, must be made available to and reviewed by the examiner. The examination should include any diagnostic testing or evaluation deemed necessary. All pertinent findings must be reported and the appropriate DBQs should be filled out for this purpose, if possible.

The examiner must also provide an opinion on the following:

(a) Is it at least as likely as not (i.e., 50% or greater probability) that the Veteran's bilateral knee disabilities were caused directly by military service?

(b) Is it at least as likely as not (i.e., 50% or greater probability) that the Veteran's bilateral knee disabilities was either (i) caused by, or (ii) aggravated by his back disability. 

The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached. 

4. Finally, after undertaking any other development deemed appropriate, re-adjudicate the issues on appeal.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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