Citation Nr: 1301356 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-05 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial compensable rating for bilateral hearing loss. 2. Entitlement to an initial compensable rating for degenerative arthritis of the left hip. 3. Entitlement to an initial increased rating for plantar fasciitis with heel spur of the left foot, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active service from October 1988 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal following a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In July 2012, the Veteran testified at a hearing conducted before the undersigned Veterans Law Judge (VLJ) in Washington, D.C. A transcript of that hearing is of record. At the hearing, the Veteran submitted additional evidence with a waiver of initial consideration by the agency of original jurisdiction (AOJ). The Board accepts the evidence for inclusion into the record on appeal. In the above noted January 2009 rating decision, the AOJ rendered decisions on 30 of the Veteran's claims. Thereafter, the Veteran filed a notice of disagreement (NOD) as to the issues pertaining to higher initial ratings for migraine headaches, bilateral hearing loss, degenerative arthritis of the left hip, and plantar fasciitis with heel spur of the left foot. In December 2009, the AOJ issued the Veteran a statement of the case (SOC) on these four issues. In a subsequent January 2010 VA Form 9 (Appeal to Board of Veterans' Appeals), the Veteran perfect his appeal only with regard to the claims for increased ratings for the service-connected bilateral hearing loss, degenerative arthritis of the left hip, and plantar fasciitis with heel spur of the left foot. As such, the issue of a higher initial rating for migraine headaches is not in appellate status. As will be discussed in further detail below, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The disability evaluations assigned by the AOJ in the January 2009 rating decision are based, in part, on QTC examinations performed in May 2008 and June 2008, some 41/2 years ago. At his July 2012 hearing, the Veteran testified that his service-connected bilateral hearing loss, degenerative arthritis of the left hip, and plantar fasciitis with heel spur of the left foot had worsened. In particular, the Veteran reported that he was now wearing hearing aids and that, when he was spoken to, he would consistently ask the speaker to repeat what they had said. The Veteran also reported increased pain in his left hip and left foot with standing and walking. He identified having received steroid injections into his left hip and left foot to help alleviate pain in those joints. The Veteran's report of increased symptoms associated with his hearing as well as with his left hip and plantar fasciitis is susceptible to lay observation and thus support the occurrence of symptoms of disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In light of the Veteran's competent testimony regarding his current symptoms, the record, as it currently stands, does not adequately reveal the present state of his service-connected bilateral hearing loss, degenerative arthritis of the left hip, and plantar fasciitis with heel spur of the left foot. Where a veteran claims a service-connected disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination to fulfill its duty to assist. Bolton v. Brown, 8 Vet. App. 185, 191 (1995); see also Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Therefore, the Veteran should be scheduled for appropriate VA examinations to assess the present state of his service-connected bilateral hearing loss, degenerative arthritis of the left hip, and plantar fasciitis with heel spur of the left foot. Moreover, with regard to the Veteran's left hip, the Board notes that the AOJ granted service connection for the degenerative arthritis of the left hip based on a report of April 1996 radiological examination report associated with the Veteran's service treatment records. The report noted a finding of minimal degenerative change associated with sclerosis of the superior articular margin of the left hip. Subsequent post-service medical records do not reflect X-rays findings, treatment, or diagnosis for degenerative changes of the left hip. In particular, a January 2009 treatment record from Naval Medical Center in Portsmouth, Virginia (NMCP) notes that an X-ray study of the left hip revealed a lack of radiographic evidence of any osteoarticular abnormality. The examiner's assessment at that time was iliotibial band friction syndrome as well as bursitis trochanteric. With respect to the Veteran's plantar fasciitis with heel spur of the left foot, the Board notes that the Veteran has testified of recurring left foot pain. A review of the Veteran's post-service treatment records from the NMCP and the VA Medical Center (VAMC) in Hampton, Virginia, reflects that, besides having been diagnosed with plantar fasciitis, the Veteran also has been diagnosed with osteoarthrosis of the ankle/foot, flat foot (for which service connection has been granted), as well as acquired deformity of the foot-equinus (i.e. gastroc equinus). The Veteran has generally complained of left foot pain with standing and activity. In a September 2012 VAMC Hampton treatment record, the Veteran reported pain in the balls and lateral aspect of his feet, the bottom of his heels, and the top of the heels just below the ankle area. In light of the post-service findings, as noted above, any examination of the Veteran's left hip on remand should include a specific finding by the examiner regarding clinical or radiographic evidence of degenerative changes of the left hip. Additionally, any examination of the Veteran's left foot on remand should include specific findings by the examiner as to the degree of disability associated solely with the service-connected plantar fasciitis with heel spur of the left foot, the issue in appellate status, as compared to any other identified disability of the left foot. The Board also notes that, since the last supplemental statement of the case (SSOC), dated in March 2011, additional VA treatment records from the Hampton VAMC were associated with the Veteran's electronic file. The records were received and associated with the file in November 2012. The Board finds the records to be pertinent evidence, as a number of the records pertain to the Veteran's treatment for his service-connected degenerative arthritis of the left hip and for plantar fasciitis with heel spur of the left foot. The Veteran has not waived initial review of the Hampton VAMC records by the AOJ. Notwithstanding that fact, as the Veteran's claims on appeal are being remanded for additional development, any subsequent readjudication of the Veteran's claims by the AOJ will allow for consideration of the Hampton VAMC records. Finally, the Veteran should be asked to supplement the record with records of any private or VA treatment he has received for his service-connected bilateral hearing loss, degenerative arthritis of the left hip, and plantar fasciitis with heel spur of the left foot. Records from the NMCP are dated no later than March 2010, and records from the Hampton VAMC are dated no later than October 2012. Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of any private or VA treatment that the Veteran may have received for his bilateral hearing loss, degenerative arthritis of the left hip, and plantar fasciitis with heel spur of the left foot. The Board is particularly interested in treatment records from the Naval Medical Center in Portsmouth, Virginia, dated since March 2010, and from the Hampton (Virginia) VAMC dated since October 2012. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain them, should be documented for the record. All such available records should be associated with his Virtual VA electronic file. 2. After completion of the above (and allowing a reasonable amount of time to obtain any identified treatment records), schedule the Veteran for a VA audiological examination to determine the nature and current level of severity of his service-connected bilateral hearing loss. The claims folder and a copy of this REMAND should be made available to and reviewed by the examiner. A notation to the effect that this review has taken place should be made in the evaluation report. All indicated tests and studies (including audiological testing) should be accomplished, and the examiner should discuss how the Veteran's hearing loss affects employment and daily living. Also, the examiner should provide a complete rationale for all opinions expressed. 3. The Veteran should also be scheduled for an appropriate VA examination to determine the nature and current level of severity of the service-connected degenerative arthritis of his left hip. The claims folder and a copy of this REMAND should be made available to and reviewed by the examiner. A notation to the effect that this review has taken place should be made in the evaluation report. The examiner should elicit from the Veteran a detailed medical history regarding his service-connected left hip disability. The examiner should identify whether there is any radiographic or clinical evidence of degenerative changes in the Veteran's left hip. The examiner should provide an explanation for the apparent conflict in service and post service X-ray studies. (See report of April 1996 radiological examination noting minimal degenerative change versus the January 2009 treatment record from Naval Medical Center in Portsmouth noting that on X-ray there was a lack of evidence of any osteoarticular abnormality.) All necessary testing should be accomplished, and all pertinent left hip pathology should be annotated in the examination report. Also, in reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, in any, accompanied by pain. To the extent possible, the examiner should assess the degree of severity of any pain. Tests of joint movement against varying resistance should also be performed. The extent of any pain, in coordination, weakened movement, and excess fatigability on repeated use or during flare-ups should be described by the examiner, and, if feasible, assessed in terms of the degree of additional range of motion loss. If it is not feasible for the examiner to answer the questions posed, the examiner must provide a detailed explanation and rationale for why an answer could not be provided. 4. The Veteran should also be scheduled for an appropriate VA examination to determine the nature and extent of his service-connected plantar fasciitis with heel spur of the left foot. The claims folder and a copy of this REMAND should be made available to and reviewed by the examiner. A notation to the effect that this review has taken place should be made in the evaluation report. The examiner should elicit from the Veteran a detailed medical history regarding his service-connected left foot plantar fasciitis and heel spur. All necessary tests should be accomplished and all pertinent pathology associated with this disability should be annotated in the examination report. [If it is not medically possible for the examiner to distinguish the symptoms of the plantar fasciitis with heel spur of the left foot from other identified left foot conditions, the examiner should so state.] Also, in reporting the results of any range of motion testing of the left foot, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, in any, accompanied by pain due to this disability. To the extent possible, the examiner should assess the degree of severity of any pain. Tests of joint movement against varying resistance should also be performed. The examiner should describe the extent of any pain, in coordination, weakened movement, and excess fatigability (due to left foot plantar fasciitis and left heel spur) on repeated use or during flare-ups, and, if feasible, assess such in terms of the degree of additional loss of range of motion. The examiner should also identify whether the functional loss/disabling affects attributable to the plantar fasciitis with heel spur of the left foot, is best described as moderate, moderately severe, or severe. The examiner must provide the complete rationale for the conclusion(s) reached. If it is not feasible for the examiner to answer the questions posed, he or she must provide a detailed explanation and rationale for why an answer could not be provided. 5. Thereafter, readjudicate the issues on appeal (as they are listed on the title page of this Remand)-to include consideration of the Hampton VAMC treatment records received in November 2012. If any of these benefits sought on appeal remain denied, the Veteran and his representative should be provided an SSOC and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. No action is required of the Veteran until he is notified by the RO/AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).