Citation Nr: 1331340 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 08-28 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a bilateral foot condition, to include pes planus, to include as secondary to service-connected disabilities of the knees. 2. Entitlement service connection for a bilateral ankle disability, to include as secondary to service-connected disabilities of the knees. 3. Entitlement to an initial compensable rating for the service-connected right ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to July 1994. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In the April 2006 rating decision, the RO, inter alia, reopened a previously denied claim of service connection for bilateral hearing loss, and granted service connection for right ear hearing loss on the merits, but denied service connection for left ear hearing loss status-post removal of acoustic neuroma on the merits. Additionally, the RO denied service connection for bilateral pes planus and a bilateral ankle condition. In February 2013, this matter was last before the Board, when it was remanded for further development. When this matter was last before the Board, it again referred the Veteran's application to reopen a claim for service connection of left ear hearing loss for adjudication. A review of the claims file, to include Virtual VA, does not indicate that this claim has been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is once again REFERRED to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In an April 2013 statement, the Veteran indicated that he had treatment for his feet and ankle conditions from Dr. Wheeler from shortly after his retirement in 1994 to present. A review of the record discloses records from this provider dated from approximately 1997 through 2005. However, no records dated prior to or after this period appear in the record. These records could possibly substantiate the Veteran's claims. Accordingly, remand is necessary to attempt to obtain these records. VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from private medical care providers. 38 C.F.R. § 3.159(c)(1) (2012). Upon remand, the AMC/RO should undertake efforts to attempt to obtain these records with the appellant's assistance. In furtherance of assisting the Veteran to substantiate his claims, VA afforded the Veteran a medical examination in December 2011 to address his claims for service connection of a bilateral foot condition, to include pes planus, and a bilateral ankle disability. The examiner that conducted the examination rendered negative etiological opinions stating that that the Veteran had congenital conditions of the feet and ankles that were not incurred in service. In light of the December 2011 VA examination findings, the Board sought clarification from the examiner, particularly to address the examiner's indication that the Veteran had congenital conditions. In April 2013 the examiner responded to the Board's request and assessed: 1) congenital gout with secondary arthritis of the feet and ankles; 2) congenital pes planus, bilateral; 3) left ankle hyperpronation with subtalar impingement 2001 after service; and 4) bilateral hallux valgus and great toe bunions. He explained that gout was an "in-born defect" and that the Veteran's pes planus was the "result of congenital eversion of the foot." He attributed the Veteran's arthritis of the feet and ankles, as well as hallux valgus and great toe bunions, to gout. He attributed left ankle hyperpronation with subtalar impingement to post-service injury in 2001. He also found that the pre-existing gout and pes planus were not subject to a superimposed disease and/or injury, and did not increase in severity in service. He also concluded that the Veteran's conditions were not aggravated by his service-connected disability of the knees. The examiner seems to indicate that gout and pes planus are congenital defects, as opposed to diseases, yet he addresses both the question of whether there is superimposed injury or disease thereon, as well as whether such conditions were aggravated in service. Accordingly, the Board finds that another medical opinion should be obtained. When this matter was last before the Board in February 2013, the Board again referred the Veteran's application to reopen a claim for service connection of left ear hearing loss. As noted above, the claim was not adjudicated by the AOJ, and the claim is inextricably intertwined with the claim for an initial compensable evaluation for right ear hearing loss. Thus, it must be deferred pending adjudication of this referred claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Send the appellant a VA Form 21-4142 with respect to records from Dr. Wheeler dating from 1994, and ask him to execute the same. Thereafter, if the appellant returns an executed release attempt to obtain these medical records and associate them with the claims file. The appellant should be advised that, in the alternative, he may submit these records. 2. After the development directed in paragraph 1 has been completed to the extent possible, refer the claims file to a podiatrist for a medical opinion. If the podiatrist concludes that the Veteran needs to be physically examined in order to render the requested opinion, arrange for such an examination. The claims file should be available for review by the podiatrist. The podiatrist should note that the claims file has been reviewed. It is noted that the diagnoses of record include congenital gout with secondary arthritis of the feet and ankles, congenital pes planus bilateral, left ankle hyperpronation with subtalar impingement and bilateral hallux valgus and great toe bunions. See VA examination report dated in April 2013. After a review of the claims file the podiatrist should respond to the following questions and provide a full statement of the basis for the conclusion(s) reached: a) Explain whether any diagnosed disability/ies of the feet and ankles is/are a congenital defect or disease. [Note: a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990) (citing Durham v. United States, 214 F.2d 862, 875 (D.C. Circuit 1954)]. Please provide a complete explanation for the opinion. b) If any assessed disability is a congenital defect, explain whether it is at least as likely as not (a probability of 50 percent or greater) that there was a superimposed injury or disease in service that resulted in additional disability of the feet and/or ankles. Please provide a complete explanation for the opinion. c) If any assessed disability is a disease (congenital or acquired) or injury, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that it pre-existed active service. Please provide a complete explanation for the opinion. d) State whether it is clear and unmistakable (obvious, manifest, and undebatable) that any pre-existing disease or injury of the feet and/or ankles WAS/WERE NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. Please provide a complete explanation for the opinion. e) If the response to either question c or d is negative, address whether any disability in this regard at least as likely as not (a probability of 50 percent or greater) began in or is related to active service. Please provide a complete explanation for the opinion. f) With respect to any other disabilities of the feet and ankles, is it at least as likely as not (a probability of 50 percent or greater) that it/they began in or is/are related to active service. Attention is directed to diagnoses of hallux valgus, bunions of the great toes, and arthritis. Please provide a complete explanation for the opinion. The Veteran asserts that his feet and ankle disabilities were incurred in or worsened in severity during service due to marching, walking and running many miles in combat boots. g) Is it at least as likely as not that the Veteran has disabilities of the feet and ankles that are due to the service-connected disabilities of the knees, including any altered gait as a result thereof. See July 2003 VA physical report in Volume 1 (Veteran was noted to walk with decreased weight on the left knee and with a lot of limping). Please provide a complete explanation for the opinion. h) Is it at least as likely as not that the Veteran has disabilities of the feet and ankles that are aggravated (i.e., worsened beyond the natural progress) due to the service-connected disabilities of the knees, including any altered gait as a result thereof. . Please provide a complete explanation for the opinion. The expert is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the expert's opinion, it is as medically sound to find in favor of the proposition as it is to find against it. All opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. [NOTE: the claim pertaining to an increased rating for service-connected right ear hearing loss is inextricably intertwined with the claim for service connection for left ear hearing loss that was referred to the agency of original jurisdiction.] The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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 Supp. 2012). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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).