Citation Nr: 1307512 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 08-35 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial rating greater than 10 percent, prior to December 21, 2012, for bilateral pes planus and a rating greater than 30 percent from December 21, 2012. 2. Entitlement to service connection for bilateral sensorineural hearing loss. 3. Entitlement to service connection for a right hip disability, status-post total right hip arthroplasty. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from January 1972 to December 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2008 (pes planus and right hip) and December 2008 (hearing loss) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas. The Veteran had a hearing before the Board in March 2010 and the transcript is of record. During the pendency of this appeal, in a September 2012 rating decision the Veteran was awarded an increased rating of 30 percent, effective December 21, 2012, for his bilateral pes planus. After the Veteran has perfected his appeal, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the issue is still properly before the Board here and the issue has been appropriately rephrased above. The case was brought before the Board in May 2010 and November 2011, at which times the claims were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claims, to include affording him appropriate VA examinations. The requested development having been partially completed, the case is once again before the Board for appellate consideration of the issues on appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim of TDIU is inferred in increased rating claims where the Veteran claims his disability affects his employability. During the Veteran's March 2010 hearing before the Board as well as during VA examinations, the Veteran has indicated his disabilities, especially his pes planus, significantly impact his employability. That is, the Veteran previously worked in construction and as a truck driver. Currently, he works as a housekeeper. During his March 2010 hearing, the Veteran explained it is difficult for him to be on his feet all day because of his pes planus. His only education and training, moreover, is in laborious type work. The Veteran testified he did not feel he would be able to find employment that would allow him to be off his feet. In light of the evidence and his testimony, the Board finds the issue has been reasonably raised in connection with his increased rating claim here. The TDIU along with the issue of entitlement to service connection for a right hip disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. During the entire appellate time frame, the Veteran's bilateral pes planus is manifested by pain, mid-foot degenerative joint disease (DJD), occasional swelling on over-use, occasional calluses, use of orthotics with improvement, marked deformity, marked pronation, and occasional pain on manipulation, but with no objective evidence of characteristic callosities, weakness, instability, or abnormal weight bearing. 2. The Veteran's other foot disorders, to include bilateral hallux valgus and bilateral hammertoes of multiple toes on each foot, were not caused or aggravated by his service-connected bilateral pes planus. 3. The Veteran's bilateral sensorineural hearing loss pre-existed service but was permanently aggravated therein. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 30 percent, but no more, effective September 25, 2007 for bilateral pes planus have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5276 (2012). 2. The criteria for entitlement to service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance The VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). With regard to the hearing loss issue on appeal here, the benefit sought is being granted in full and, therefore, any deficiencies in notice or assistance are deemed harmless error. With regard to the pes planus claim, in cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). There has been no allegation of such error in this case. The Veteran's service treatment records and VA medical records are in the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The RO provided the Veteran appropriate VA examinations in 2008, 2009, 2010 and 2012. These examinations are adequate because they are based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder and appropriate diagnostic tests, to include x-ray. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The Veteran has not reported receiving any recent treatment specifically for this condition (other than at VA, which records are in the file), and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. VA has satisfied the duty to assist the Veteran and the Board may proceed to consider the merits of the claim. Increased Rating (Bilateral Pes Planus) Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Requests for increased disability ratings require consideration of the medical evidence of record compared to the criteria in the VA Schedule for Rating Disabilities. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2004); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). For a claim for an increased rating the primary concern is the current level of disability. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. "Staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. The Veteran is service-connected for bilateral pes planus (flat feet), which he claims limits his ability to be on his feet for very long. He indicates this impacts his daily life and occupation. It is noteworthy that the Veteran has other foot disabilities such as bilateral hallux valgus (bunions) and hammertoes that are not service-connected. His pes planus was initially awarded a 10 percent rating under Diagnostic Code 5276, for acquired flat foot, and the rating was increased to 30 percent, effective December 21, 2012 based on the most recent VA examination findings. Under Diagnostic Code 5276, a 10 percent rating is awarded for acquired flatfoot (whether unilateral or bilateral) if the symptoms are "moderate," defined as "weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet." 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5276. A 30 percent rating is awarded for bilateral flatfoot, which is "severe," define as "objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities." A 50 percent rating is warranted for bilateral acquired flatfoot for "pronounced" symptoms, defined as "marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances." Id. As will be explained below, the Board finds the symptoms described throughout the appellate time frame generally support the 30 percent rating, but no higher, for bilateral acquired flatfoot. VA outpatient treatment records show sporadic treatment for the feet, to include prescribed orthotics, which the Veteran consistently reports as helpful in improving his symptoms. It is noteworthy that VA treatment records also indicate the Veteran underwent surgery related to hallux valgus, but has not undergone surgery specifically related to his service-connected pes planus. The Veteran was afforded a VA examination in January 2008 where the Veteran complained of significant pain every other day, described as a cramping in the feet. He did not identify any problems with activities of daily living, but noted he works in housekeeping where he goes to employee health "frequently" because of his feet. Otherwise, he indicated he is able to perform his job. At that time, the Veteran walked with a cane and did not use brace or orthotic inserts. The examiner did not find any evidence of abnormal weight bearing, weakness, or pain on manipulation of the feet. His bilateral pes planus was described as "flexible." The examiner also noted calluses present in the dorsum of the proximal interphalangeal joints. At that time, the Veteran was also diagnosed with bilateral hallux valgus deformities and hammertoes of the second to fourth toes bilaterally. In June 2009, the Veteran was afforded another VA examination. At that time, the Veteran reported using special shoes with custom made insoles, which were helpful. He complained of pain and occasional swelling. On examination, the examiner found some objective evidence of pain on manipulation, collapse of arch, pain on motion, and tenderness on the longitudinal arch. The examiner found no evidence of abnormal weight pattern, weakness, fatigability, edema or instability. The examiner also noted the Veteran's hallux valgus (bunions) and hammertoes, but opined that these conditions are not due to his pes planus. Rather, the hammertoe deformities are probably secondary to his hallux valgus, and the hallux valgus is of unknown origin. Overall, the examiner did not believe any of these additional conditions are due to his pes planus. Similarly, in May 2010, an examiner reviewed the claims folder and further opined that the Veteran's pes planus was not responsible for his bunion. Specifically, the examiner found no direct correlation or relationship in any way between congenital pes planus and the bunion that formed "over the years." The examiner further indicated that the Veteran's service time did not create or aggravate his bunion. Likewise the Veteran's pes planus, congenital in nature, is not responsible for the bunion. "It was a matter of time." The Veteran was afforded another VA examination in June 2010 where the Veteran complained of pain in both feet, but acknowledges the orthotics do help along with pain medications. On examination, the Veteran had pain on the plantar surface of his feet, tenderness, and some edema. The examiner noted the Veteran's March 2010 bunionectomy, which was still healing at the time of the examination. Even so, the examiner found no evidence of weight bearing abnormality and the Veteran walked with a normal gait. His feet were not painful on manipulation (other than post-surgery pain) and there was no evidence of weakness or instability. The Veteran was most recently afforded a VA examination in February 2012 where, in addition to bilateral pes planus, the Veteran was also diagnosed with mid-foot degenerative joint disease (DJD). At that time, the Veteran complained of pain in the mid-foot area with increased pain on use. The examiner found no evidence of swelling, calluses, or pain on manipulation. The Veteran uses orthotics and denied extreme tenderness. The examiner did observe, however, marked deformity and marked pronation, improved with orthotics. The examiner also found no evidence of weakened movement, fatigability, or edema. Similar to other examiners, this examiner found evidence of hallux valgus, but opined it was not secondary to, related to, or the result of flat foot deformity. "Bunions will not be affected by the flatfoot deformity." In short, the Veteran's symptoms for his flatfeet have varied slightly throughout time, but throughout the pendency of this appeal, the symptoms described at any one point in time always most nearly approximated the 30 percent rating criteria, but no greater. For example, in 2008, the Veteran was not yet using orthotics, nor was there evidence of pain on manipulation at that time, but the examiner noticed calluses, severe pain, and deformity. In 2009 and 2010, calluses were not noted, but at that time the Veteran was wearing orthotics and exhibited pain on manipulation with some edema. In 2012, the Veteran did not have edema, swelling, or pain on manipulation, but his pronation/deformity was described as "marked," and he had x-ray evidence of DJD of the mid-foot bilaterally. Thus, while the Veteran never had all the criteria for 30 percent at any one time in the appellate time frame, he had many of the symptoms throughout the pendency of the appeal. The Veteran's functional loss was also taken into account. 38 C.F.R. §§ 4.40, 4.45. All examiners note the Veteran's increased pain on use, and his limitations with regard to walking or being on his feet for extended periods of time. While some examiners noted edema/swelling on over use and increased pain on over use, no examiner found objective evidence of weakness, instability, or fatigability. Indeed, the 2012 VA examiner specifically noted that the Veteran's functional impairment is not equivalent to an amputated foot. The Veteran works full time as a housekeeper and is able to perform activities of daily living by himself. Overall, the Board finds the Veteran's bilateral pes planus always nearly reflected the 30 percent rating criteria, but no higher. That is, none of the medical evidence indicates "pronounced" flatfoot with "extreme" tenderness and "severe" spasm of the tendo achillis on manipulation. In fact, when tenderness on manipulation is noted (which was not always found) it was described as "some pain on manipulation." Also significant, the medical evidence consistently notes the Veteran's pronation deformity, but improved by orthotics. Thus, a 30 percent rating under DC 5276 for acquired flatfoot is warranted for the entire time period, but no higher. The Board considered whether the Veteran is entitled to a higher rating under an alternative diagnostic code, but the only foot-related diagnostic code that provides for a rating greater than 30 percent is DC 5278, for acquired claw foot. The Veteran has never been diagnosed with pes cavus (claw foot), so this diagnostic code is inapplicable. Diagnostic Code 5003 rates degenerative arthritis, but this diagnostic code does not provide for a rating greater than his already assigned 30 percent rating. See 38 C.F.R. § 4.71a, DC 5003. The Board also considered whether the Veteran is entitled to a separate rating or separate ratings for the manifestations of his feet. In certain circumstances, a separate disability rating for arthritis may be warranted. That is, 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). With regard to the Veteran's other diagnoses of hallux valgus and hammertoes, the Board finds separate disability ratings not warranted here. Initially, these conditions are not currently service-connected. No medical professional has ever associated these conditions with his military service or his service-connected pes planus. Indeed, 2009, 2010, and 2012 VA examiners specifically opined to the contrary. The December 2012 VA examiner also diagnosed the Veteran with DJD of the bilateral mid-foot. If the Veteran had a foot disability with manifestations inherently different than the symptomatology of arthritis, and there was also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. Such is not the case. The Veteran's complaints of painful motion and tenderness are already part of the criteria for his current rating and a separate disability rating would constitute pyramiding. Id. The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected bilateral pes planus. There are higher ratings available under the diagnostic codes for the disabilities addressed in this decision, but the Veteran's condition is not productive of the manifestations that would warrant the higher ratings. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). The preponderance of the evidence warrants a 30 percent rating, but no higher, for bilateral pes planus across the entire appellate time frame. No further increased rating or separate rating is warranted; there is no doubt to be resolved. Service Connection (Hearing Loss) Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (emphasis added). In order to establish direct service connection for a disability or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. This presumption of sound condition attaches only where there has been an induction examination in which a disease or injury was not noted but which manifested or was incurred in service. Gilbert v. Shinseki, 26 Vet. App. 48, No. 11-2355, 2012 WL 5233422 (Vet. App. Oct. 24, 2012) ("Once the presumption of soundness is applied, if the Secretary is unable to rebut the presumption, the disease or injury that manifested in service is deemed incurred in service, such that the second element of service connection is established."); see also Holton v. Shinseki, 557 F.3rd 1362, 1366 (Fed.Cir. 2009) (noting that to establish a right to compensation for a present disability, a veteran must show: (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). Where a preexisting disease or injury is noted on the entrance examination, it "will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service had their onset in service. 38 U.S.C.A. §§ 1112, 1113 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Service connection for organic diseases of the nervous system, including sensorineural hearing loss, may be established based on a legal "presumption" by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). In this case, this presumption is not applicable because the evidence indicates the Veteran's hearing loss pre-existed his military service. The Veteran contends he has hearing loss associated with his duties as an assistant door gunner. Specifically he indicates his duties regularly exposed him to explosives, gun fire, and loud diesel engines. Despite being issued "cheap" ear plugs, he believes his hearing loss is due to in-service noise exposure as he has never been around similar noise trauma after service. The Veteran's December 1971 entrance examination reveals the following audiogram results: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 / 25 LEFT 20 10 25 / 45 In August 1974, four months prior to the Veteran's separation from the military, the Veteran sought treatment for pain in his ears for two days with "ringing." At that time, the treatment note indicates the Veteran "works on a cannon, but wears ear plugs" and had "previous ear trouble." A hearing test was ordered and, based on the August 1974 audiogram, the Veteran was diagnosed with bilateral high frequency hearing loss and put on a 30 day profile. The audiological graph or "tracing" is among the service treatment records but was not converted to a numerical audiogram chart. However, the tracing reveals numerical results approximately as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 20 20 30 45 LEFT 35 25 30 65 65 See Kelly v. Brown, 7 Vet. App. 471 (1995) (holding it is permissible for the Board to interpret graphical data, to include audiograms). The Veteran's separation examination only two weeks later in September 1974 reflected significantly improved hearing acuity when compared with the August 1974 tracing. Specifically, audiogram findings were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 5 / 25 LEFT 20 20 15 / 20 Unlike the December 1971 and August 1974 audiological findings, the separation audiological findings did not include the actual audiological graph or tracing on an audiogram card. The first pertinent inquiry that must be addressed with respect to this claim is whether the Veteran entered service with a pre-existing hearing loss defect or disorder. 38 U.S.C.A. § 1111 ("Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment . . . .). The Board finds that he did because the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Therefore, the entrance audiogram showed some degree of hearing loss at 4000 Hertz in the right ear and at 2000 and 4000 Hertz in the left ear. Accordingly, the Board concludes that a pre-existing hearing loss was noted at entrance to service in December 1971, and the remaining questions are (1) whether the pre-existing hearing loss underwent an increase in severity in service and, if so, whether that increase in severity constituted an aggravation of the condition; and (2) whether the Veteran's hearing loss presently is of such severity to be considered a current hearing loss "disability" as defined by VA regulation under 38 C.F.R. § 3.385. The evidence of aggravation in service is conflicting. The August 1974 audiogram tracing appears to reflect an increase in severity when compared with the audiogram results at entrance in December 1971. Yet, two weeks later, on the separation examination report, the audiological evaluation does not show significant threshold shifts in the right ear, when compared to the entrance examination, and appears to demonstrate some improvement in hearing acuity in the left ear at 4000 Hertz. It may be that the August 1974 findings reflected a temporary flare-up of hearing loss, perhaps from exposure to the noise of the cannon which the treatment note indicates that the Veteran was working on, and that that temporary hearing loss had resolved two weeks later by the time of the September 1974 separation examination. On the other hand, no graphical data or tracing was provided to support the audiological findings noted on the September 1974 separation examination as was the case with the August 1974 results. Because the service treatment records do not include an audiogram graph or tracing for the September 1974 findings and because the September 1974 findings differ significantly from those shown by the actual tracing from the testing equipment used for the testing done just two weeks earlier, the Board assigns less probative value to the September 1974 separation audiological findings than it does to the August 1974 audiogram results shown on the tracing. Accordingly, the Board concludes that there was an increase in severity of the preexisting hearing loss in service between entrance in December 1971 and August 1974, shortly before separation from service. The increase in severity of the hearing loss creates a presumption of aggravation of the preexisting hearing loss during service, and the burden of proof shifts to the government to show that the August 1974 increase in severity was due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disorder underwent an increase in severity during the military service. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the disorder. The Veteran was afforded VA examinations in February 2009, October 2009, and December 2011. Those examinations show diagnoses of bilateral sensorineural hearing loss (the left being consistently worse than the right), and audiological findings show the existence of a current hearing loss "disability" which meets the requirements of section 3.385 for the purposes of service connection. 38 C.F.R. § 3.385. However, all the examiners noted the Veteran's "normal" separation examination as evidence that his hearing loss did not pre-exist service and was not caused by service. The ambiguities of the medical evidence have never been adequately explained by any of the VA examiners and none of the examiners provided adequate rationale for conclusions reached. In fact, the December 2011 VA examiner did not highlight or otherwise address this ambiguous medical evidence at all. Rather, the opinion merely emphasized the fact that the Veteran's separation audiogram was within normal limits. Although the 2009 VA examiners acknowledged the confusing medical evidence, neither of these examiners attempted to reconcile the evidence or otherwise provide a rationale for the negative nexus opinions rendered. Additionally, none of the three examinations of record rendered an opinion considering all accurate facts. For example, the February 2009 VA examiner found no mention of tinnitus in the service treatment records, yet the Veteran presented on August 1974 complaining of ringing in his ears with ear pain. The December 2011 VA examiner indicated that the Veteran first noticed hearing loss in 1975, after separation from service. It is clear, however, that the Veteran has not only claimed first noticing hearing loss during active service, but the August 1974 treatment record clearly documents his in-service complaints of hearing loss. None of the examiners reconcile the fact that the August 1974 audiogram tracing revealed hearing loss whereas the September 1974 separation examination (a mere two weeks later) reflected hearing within normal limits. Accordingly, for these reasons, the Board finds none of these examination reports adequate or persuasive. See, e.g. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on incomplete or inaccurate factual premise are not probative). To rebut the presumption of aggravation, the government would need to show "clear and unmistakable" (i.e. undebatable) evidence that the Veteran's hearing loss worsened as a natural progression of the disorder and not due to in-service noise trauma. Currently, the medical evidence does not meet this onerous burden. Given that the presumption of aggravation is applicable here and runs in favor of the Veteran's claim, however, the Board concludes that additional development of the medical evidence at this point is not necessary to render a decision in this appeal. 38 C.F.R. § 3.159(c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Instead, the Board will decide the case based on the presumption of aggravation which runs in the Veteran's favor. Therefore, the Board finds the Veteran's bilateral sensorineural hearing loss pre-existed service but is presumed to have been aggravated during service in light of his in-service treatment records in August 1974 showing an increase in severity of the preexisting hearing loss. There is no clear and unmistakable evidence to rebut the presumption of aggravation in this case. Finally, the evidence shows that the Veteran currently has a hearing loss disability as defined by VA regulation. 38 C.F.R. § 3.385. Accordingly, the requirements for service connection for bilateral hearing loss have been met in this case. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. § 3.306. ORDER Entitlement to an increased initial rating to 30 percent, but no greater, effective September 25, 2007, for bilateral pes planus is granted, subject to the laws and regulations governing monetary awards. Entitlement to service connection for bilateral sensorineural hearing loss is granted. REMAND The Veteran contends he has a right hip disability associated with his duties as an assistant door gunner. Specifically he indicated he was banged around inside the tank injuring his right hip. He also indicates he noticed right hip pain while he was still on active duty. As noted in the introduction, he further testified as to occupational impairments associated with his military service and disabilities stemming from military service. The right hip claim has been remanded twice previously to afford the Veteran adequate examinations with appropriate consideration of his contentions in light of the circumstances of his service and in-service treatment. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Veteran was afforded multiple VA examinations associated with his right hip claim, but for reasons explained in greater detail below, the Board does not find any of these VA examinations adequate or, in addition, responsive to the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Right Hip Current VA outpatient treatment records indicate the Veteran was diagnosed with degenerative joint disease (DJD) of the right hip in 2005, over three decades after service, and underwent a right total hip arthroplasty (THA) in 2007. The Veteran indicates he first noticed right hip problems in the military. Specifically, he recalls routinely banging his right hip up against the tank he was riding in as an assistant door gunner. Although he may have complained of right hip pain to his corpsman, he testified during his March 2010 hearing before the Board that he did not seek formal treatment for his right hip. Indeed, his service treatment records do not indicate any complaints, treatment, or diagnoses of a right hip disability. As explained in prior Board remands, however, it is clear from service personnel records that the Veteran was both a cannoneer and a missile handler. His statements and description of in-service injury is consistent with the circumstances of his service. The Veteran, moreover, is competent to report his right hip pain first began in service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge). The Board last remanded the claim in November 2011 to afford the Veteran a VA examination to ascertain the nature and likely etiology of any right hip disability found. The Board's remand directive specifically instructed the examiner to opine whether the Veteran's right hip diagnosis or diagnoses are related to "his in-service complaints of being bumped around in a tank while serving as assistant door gunner." The Veteran was afforded a VA examination in February 2012 where the examiner diagnosed the Veteran with degenerative joint disease (DJD) of the right hip and total hip arthroplasty (THA) of the right hip. With regard to etiology, the examiner opined the Veteran's right hip is less likely than not related to his in-service perianal abscess/injury in military service because he got over the abscess and was asymptomatic until 2005. By way of background, the Board notes the Veteran's service treatment records indicate he was treated for an abscess in the buttocks area in January 1973. This is the treatment the Board presumes the February 2012 VA examiner is referencing. The reference is odd in that the Veteran himself has never claimed his right hip disability is related to this in-service treatment, nor did the Board ask the examiner to comment on a relationship between that particular in-service treatment and his right hip. Rather, the Board's prior remand directive asked the examiner to opine as to the likelihood the Veteran's current right hip disability is related to his description of in-service right hip pain and in-service right hip injuries as a result of being bumped around in a tank. The examiner did not address this in the opinion, nor did the examiner acknowledge the Veteran's testimony of right hip pain first starting in service. For these reasons, the Board finds the VA examination inadequate and non-responsive to the Board's prior remand directives. Corrective action is required. TDIU As noted in the introduction, the Board finds the record reasonably raises a TDIU claim. No development or medical opinion has been obtained to ascertain whether the Veteran's service connected disabilities render him unemployable. Additionally, the TDIU issue is "inextricably intertwined" with the resolution of the service connection claims on appeal here and, therefore, they must be fully decided prior to adjudication of the Veteran's TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The VA is to also take this opportunity to obtain recent VA outpatient treatment records from August 2012 to the present. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in connection with his inferred claim for TDIU. 2. Ask the Veteran to identify and provide release forms for any private or VA treatment received for any of the claimed disabilities. Thereafter, efforts should be made to obtain any and all identified treatment. Regardless of whether the Veteran responds, obtain VA outpatient treatment from the Central Arkansas Healthcare System from August 2012 to the present. All efforts to obtain identified medical records should be fully documented, and any VA facility must specifically provide a negative response if records are not available. 3. After the above records are obtained, to the extent available, schedule the Veteran for a new VA orthopedic examination to determine the current nature and likely etiology of any and all right hip disabilities found. The entire claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. The examiner's attention is specifically directed to the Veteran's in-service MOS as a cannoneer and missile handler, his description of in-service right hip injuries while riding in a tank, and his description of symptoms of right hip pain in-service and thereafter. Based on examination findings, diagnoses rendered and a review of the record, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed right hip disability was caused by or is otherwise the result of the Veteran's in-service complaints/injuries from being bumped around in a tank while serving as assistant door gunner. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The opinion must be reconciled with any conflicting medical evidence of record. 4. After all of the above is completed, records are obtained to the extent available, the initial rating for hearing loss and the remaining service connection issue are fully decided, obtain a VA medical opinion to ascertain the Veteran's occupational impairment due to service-connected disabilities. The entire claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. Although it is the responsibility of the VA rating specialist to determine, based on all the relevant evidence of record--including reports of examination, outpatient treatment records, lay statements, letters from employers, and evidence pertaining to the Veteran's educational background and employment history--whether the Veteran is unable to obtain or retain substantially gainful employment in light of his service-connected disabilities alone, the VA examiner must address the extent of functional and industrial impairment due to the Veteran's service-connected disabilities. It is the examiner's responsibility to furnish a full description of the effects of the service-connected disabilities upon the Veteran's ordinary activity which include employment. See 38 C.F.R. § 4.10. For example, his description may include an opinion on such questions as whether a claimant's condition precludes standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, or performing other specific tasks. Moore v. Nicholson, 21 Vet. App. 211, 219 (2007), rev'd on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). The examiner should, in this case, offer such an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities (currently including bilateral sensorineural hearing loss; tinnitus; bilateral pes planus; and post-traumatic arthritis of the right thumb), either singly or taken together, render him unable to secure or follow a substantially gainful occupation. The examination report must include a complete rationale for all opinions and conclusions expressed. Note: The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 5. Then, readjudicate the claims. If any of the claims remain denied, provide the Veteran and his representative a supplemental statement of the case (SSOC). An appropriate period of time must be allowed for response. 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). The 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 2002). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs