Citation Nr: 1637938	
Decision Date: 09/28/16    Archive Date: 10/07/16

DOCKET NO.  11-08 906A	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to a compensable initial rating for a bilateral hearing loss disability from December 18, 1989, and a rating in excess of 20 percent from December 16, 2014.

2.  Entitlement to an effective date earlier than December 18, 1989 for the grant of entitlement to service connection for a bilateral hearing loss disability.

3.  Entitlement to service connection for a bilateral pes planus disability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

Steven D. Najarian, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from June 1964 to June 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decision of November 2008 and May 2011 of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.
 
In January 2016, the Veteran testified at a videoconference hearing at the New Orleans RO before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

The Veteran's earlier appeal as to the rating assigned for service-connected posttraumatic stress disorder (PTSD) with major depressive disorder is not before the Board.  The Veteran argued that the PTSD "rating should have increased to at least 70 percent."  See VA Form 9 of April 2011.  A rating decision of January 2015 increased the Veteran's PTSD rating from 50 percent to 70 percent disabling effective September 17, 2007, and to 100 percent disabling effective December 12, 2014.  An appellant may expressly limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law.  See AB v. Brown, 6 Vet. App. 35, 39 (1993).  Here the Veteran received 70 percent, and then 100 percent, as requested in his substantive appeal.  Typically, a grant of less than total remains on appeal.  However, in this case, the rating decision informed the Veteran that the increased PTSD evaluation was considered a full grant of benefits sought on appeal, and he did not disagree.

The Veteran was granted service connection for a bilateral hearing loss by a Board decision of October 2008.  A November 2008 rating decision of the RO implemented the Board's decision.  A disability rating of zero percent, effective December 18, 1989, was assigned.  In January 2009, the Veteran filed a notice of disagreement with respect to the assigned rating and the effective date.  In February 2011, a statement of the case was issued as to the rating, and the Veteran perfected an appeal to the Board by a VA Form 9 filed in April 2011.  By a rating decision of January 2015, the RO increased the rating for bilateral hearing loss to 20 percent, effective February 1, 2015.  Where a rating decision awards a higher, but less-than-maximum rating after a claimant has perfected an appeal as to the rating, the pending appeal is not abrogated.  See AB v. Brown, supra.  Accordingly, the issue of entitlement to a higher initial rating for bilateral hearing loss remains before the Board.

The Veteran waived agency of original jurisdiction (AOJ) initial review of additional submitted evidence in accordance with 38 C.F.R. § 20.1304(c).  See Veteran's filing of January 2016.  The evidence is accepted for inclusion in the record on appeal.

The Veteran's record before the VA consists of an electronic record located in Virtual VA and the Veterans Benefits Management System (VBMS).

In correspondence received on January 13, 2016, the Veteran attempted to raise the issue of entitlement to service connection for an auditory processing disorder.  Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on specific claim form prescribed by the Secretary, and available online or at the local Regional Office.  The Veteran is advised that if he wishes to open a claim, he do so using the prescribed form either in person or online (https://www.ebenefits.va.gov/ebenefits/).

The issue of entitlement to an effective date earlier than December 18, 1989 for the grant of entitlement to service connection for bilateral hearing loss, and the issue of entitlement to service connection for bilateral pes planus, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  From December 12, 1989 to December 16, 2014, the Veteran's bilateral hearing loss disability is manifested by no more than Level III hearing impairment in the right ear and Level III hearing impairment in the left ear, according to 38 C.F.R. 
§ 4.85, Table VI.

2.  From December 16, 2014, the Veteran's bilateral hearing loss disability is manifested by no more than Level V hearing impairment in the right ear and Level VI hearing impairment in the left ear, according to 38 C.F.R. § 4.85, Table VIa.


CONCLUSIONS OF LAW

1.  From December 12, 1989 to December 16, 2014, the criteria for the assignment of a compensable disability rating for the Veteran's service-connected bilateral hearing loss disability are not met.  See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2015).

2.  From December 16, 2014, the criteria for the assignment of a disability rating in excess of 20 percent for the Veteran's service-connected bilateral hearing loss disability are not met.  See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Increased rating for bilateral hearing loss

Duties to notify and assist

The development of the Veteran's claim has been consistent with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulation.  See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015).  The Veteran was given the required VCAA notice by letters of February 1990, November 2003, and October 2007.  The Veteran's appeal seeking a higher initial evaluation for bilateral hearing loss presents a "downstream" issue following upon the grant of service connection.  Because VA has granted service connection and assigned an initial disability rating and effective date, no additional notice is needed as to the information and evidence needed to substantiate the claim.  See Dingess/Hartman v. Nicolson, 19 Vet. App. 473, 490-91 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008).

The VCAA also defines the obligations of VA with respect to a duty to assist a claimant in the development of the claim.  See 38 U.S.C.A. §§ 5103, 5103A (West 2014).  VA must help a claimant to obtain evidence necessary to substantiate a claim unless there is no reasonable possibility that such assistance would aid in substantiating the claim.  The required assistance includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015).

The Board finds that all available, relevant evidence necessary to decide the issue on appeal has been identified and obtained.  The evidence of record includes statements of the Veteran, lay statements, post-service VA and private treatment records, and service treatment records.  The Veteran underwent VA medical examinations for his hearing in September 2006, September 2009, and December 2014.  The examiners' findings pertaining to the Veteran's hearing allow the Board to rate his disability under the appropriate diagnostic criteria.  The VA audiological examination reports are adequate for evaluation purposes.  See 38 C.F.R. § 4.2 (2015); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that a VA medical examination and opinion must be adequate).

In connection with the January 2016 Board hearing, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).  The VLJ fully explained the issue on appeal and suggested evidence that would help establish the elements of the Veteran's claim.  The VLJ also held the record open for 90 days following the hearing in order for the Veteran to submit additional medical evidence.  The duties to notify and assist have been met in this case.

Legal criteria

Disability ratings assigned in accordance with VA's Schedule for Rating Disabilities are intended to represent the average impairment of earning capacity resulting from disability.  See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. 
§§ 3.321(a), 4.1 (2015).  Separate diagnostic codes identify the various disabilities.  See 38 C.F.R. Part 4 (2015).  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.  See 38 C.F.R. § 4.7 (2015).

The assignment of a particular diagnostic code depends on the facts of the case.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based upon such factors as the claimant's medical history, diagnosis, and symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

In determining the present level of a disability for any increased rating claim, the Board must consider the possible application of "staged" ratings for diverse symptoms meeting the criteria for different ratings in distinct time periods during the course of the appeal.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold and as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  The rating schedule establishes 11 auditory acuity levels, designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.
VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test.  The vertical lines in Table VI (38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel (dB) loss based on the puretone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone dB loss.

The percentage evaluation is found from Table VII by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity.  See 38 C.F.R. § 4.85 (2015).

When the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  See 38 C.F.R. § 4.86(a) (2015).  Each ear will be evaluated separately.  When the puretone threshold is 30 dB or less at 1000 Hertz, and 70 dB or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  See 38 C.F.R. § 4.86(b) (2015).

After the evidence is assembled, the Board must evaluate the entire record.  See 38 U.S.C.A. § 7104(a) (West 2014).  When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on the merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
Analysis

The November 2008 rating decision that established service connection for the Veteran's bilateral hearing loss disability assigned a zero percent evaluation under 38 C.F.R. § 4.85.  See rating decision of November 2008.  The Veteran filed a notice of disagreement in January 2009 as to the initial assigned rating and the effective date.  By a rating decision of January 2015, the RO increased the rating for bilateral hearing loss to 20 percent, effective February 1, 2015.  The Veteran seeks a compensable initial rating for his bilateral hearing loss disability from December 18, 1989, and a rating in excess of 20 percent from December 16, 2014.

Lay statements attest to the Veteran's hearing difficulty.  See November 2008 statement of N. W.; November 2008 statement of W. W.  In December 1989, a VA Agent Orange examination of the Veteran found no hearing loss, and no hearing-loss complaints were noted.

The results of a private audiological examination of February 1993 were:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
30
55
70
LEFT
25
35
25
60
80

The February 1993 examination is incomplete for VA rating purposes because no speech discrimination scores were provided.  For VA purposes, audiometric examinations are to be conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test.  See 38 C.F.R. § 4.85(a) (2015).  Similarly, a private treatment record of August 2000 states, "The audiogram done on this date indicates severe high frequency hearing loss," but no audiogram for that date is of record.

An audiological examination conducted at a VA medical center in November 2004 shows the following puretone thresholds:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
45
45
65
75
LEFT
30
45
35
70
85

The Maryland CNC speech recognition scores were 84 percent for the right ear and 88 percent for the left ear.  The examination yields a numerical designation of III for the right ear (58 average puretone decibel hearing loss, with between 84 and 90 percent speech discrimination) and a numerical designation of III for the left ear (59 average puretone decibel hearing loss, with between 84 and 90 percent speech discrimination).  The Veteran was not shown at this time to have an exceptional pattern of hearing loss in either ear.  Entering the category designations derived from the examination into Table VII indicates a disability percentage evaluation of zero percent.  The findings of the Veteran's November 2004 audiological examination do not support a compensable rating under 38 C.F.R. § 4.85.

The Veteran underwent a VA examination for his hearing in September 2006.  The puretone threshold results were:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
45
50
70
75
LEFT
30
45
40
70
80

The Veteran's Maryland CNC speech recognition scores were 94 percent for the right ear and 96 percent for the left ear.  The examination yields a numerical designation of II for the right ear (60 average puretone decibel hearing loss, with between 92 and 100 percent speech discrimination) and a numerical designation of II for the left ear (59 average puretone decibel hearing loss, with between 92 and 100 percent speech discrimination).  The Veteran was not shown at this time to have an exceptional pattern of hearing loss in either ear.  Entering the category designations derived from the examination into Table VII indicates a disability percentage evaluation of zero percent.  The findings of the Veteran's September 2006 audiological examination do not support a compensable rating under 38 C.F.R. § 4.85.

The Veteran next underwent a VA examination for his hearing in September 2009.  The puretone threshold results were:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
45
50
70
75
LEFT
35
45
45
70
80

The Veteran's Maryland CNC speech recognition scores were 88 percent for the right ear and 88 percent for the left ear.  The examination yields a numerical designation of III for the right ear (60 average puretone decibel hearing loss, with between 84 and 90 percent speech discrimination) and a numerical designation of III for the left ear (60 average puretone decibel hearing loss, with between 84 and 90 percent speech discrimination).  The Veteran was not shown at this time to have an exceptional pattern of hearing loss in either ear.  Entering the category designations derived from the examination into Table VII indicates a disability percentage evaluation of zero percent.  The findings of the Veteran's September 2009 audiological examination do not support a compensable rating under 38 C.F.R. § 4.85.

The Veteran again underwent a VA examination for his hearing in December 2014.  The puretone threshold results were:




HERTZ



500
1000
2000
3000
4000
RIGHT
45
55
60
80
80
LEFT
45
55
60
80
85

The Veteran's Maryland CNC speech recognition scores were 84 percent for the right ear and 76 percent for the left ear.  Because the puretone threshold at all the frequencies of 100, 2000, 3000, and 4000 Hertz was 55 decibels or greater, the Veteran was shown at this time to have an exceptional pattern of hearing loss in both ears.  In such circumstances, the Roman numeral designation for hearing impairment is to be determined from either Table VI or Table VIa, whichever results in the higher numeral.  See 38 C.F.R. § 4.86(a) (2015).  Under Table VI, the examination yields a numerical designation of III for the right ear (69 average puretone decibel hearing loss, with between 84 and 90 percent speech discrimination) and a numerical designation of IV for the left ear (70 average puretone decibel hearing loss, with between 76 and 82 percent speech discrimination).  Entering those category designations into Table VII indicates a disability percentage evaluation of 10 percent.  Under Table VIa, the examination yields a numerical designation of V for the right ear (puretone threshold average of 69) and VI for the left ear (puretone threshold average of 70).  Entering those category designations into Table VII indicates a disability percentage evaluation of 20 percent.  While the findings of the Veteran's December 2014 audiological examination support the higher 20 percent rating, they do not support higher than that under 38 C.F.R. § 4.85.

With the record not having shown entitlement to an increased rating under the Rating Schedule, the Board has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  Ordinarily the VA Schedule will apply unless exceptional or unusual factors render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

An extraschedular disability rating is warranted if the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2015); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).  Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a claimant is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first element of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for service-connected hearing loss are inadequate.  Notably, the Veteran has stated, "Without the hearing aids, I don't understand what people are saying, especially with two or more people."  See December 2014 VA audiological examination report.  He further contended, "I hear better in the sound booth, but when I step out the world changes and those changes have affected my work ability, my family/social life and my personal life."  Id.

A comparison between the level of severity and symptomatology of the Veteran's bilateral hearing loss with the established criteria shows that the rating criteria reasonably describe his disability level and symptomatology with respect to the symptoms he experiences.  The regulations that designate decibel loss and speech discrimination for each level of hearing impairment in Tables VI and VIa were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability.  In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86.  In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  Accordingly, a different table of decibel threshold requirements was established (i.e., Table VIa), with the intended effect being to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994).  Those certain patterns of impairment are specifically laid out in the schedule, and the Veteran's hearing thresholds have been evaluated based on his exception pattern of hearing impairment.  Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria.  The schedular rating criteria adequately contemplate the Veteran's symptomatology, and a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted.

A claimant may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).  In this case, the Veteran has been assigned a 100 percent rating for posttraumatic stress disorder, a 20 percent rating for bilateral hearing loss, a 20 percent rating for prostate cancer, a 10 percent rating for tinnitus, a 10 percent rating for type II diabetes mellitus, and a zero percent rating for erectile dysfunction associated with prostate cancer.  He has also been awarded special monthly compensation with an effective date of September 22, 2009.  The Veteran has not indicated during the current appeal that his service-connected bilateral hearing loss results in further disability when looked at in combination with his other service-connected disabilities such that the rating criteria are inadequate.  Therefore, the Board finds that the schedular criteria adequately describe the Veteran's bilateral hearing loss disability, which is characterized by hearing difficulty.  See 38 C.F.R. §§ 4.85 (2015).  This is not an exceptional circumstance in which extraschedular consideration may be required to compensate a claimant for a disability that can be attributed only to the combined effect of multiple conditions, and referral for consideration of an extraschedular evaluation is not warranted.

A claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  The September 2009 VA examiner found "no significant effects" on occupation.  While the Veteran states that his hearing loss disability has affected his "work ability," he has not asserted, and the evidence of record does not show, that his bilateral hearing loss disability renders him unable to secure or follow a substantially gainful occupation.  The disability rating itself is recognition that industrial capabilities are impaired; some industrial impairment is specifically contemplated by the assigned schedular rating.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  Accordingly, the issue of TDIU has not been raised in this case.

As a final matter, VA must give a sympathetic reading to a claimant's filings and adjudicate all issues and potential claims reasonably raised by the evidence of record.  See Robinson v. Shinseki, 557 F.3d 1355, 1359-62 (Fed.Cir.2009).  In determining whether a particular claim has been raised, the Board must consider all documents or oral testimony submitted prior to the Board's decision and review all issues which are reasonably raised from a liberal reading of such documents and oral testimony.  See Suttman v. Brown, 5 Vet.App. 127, 132 (1993).  The Board acknowledges the Veteran's statement that he has "auditory processing disorder associated with blast exposure."  See Veteran's filing of January 2016.  He also submitted excerpted information which states, "Auditory processing disorder (APD), also known as central auditory processing disorder (CAPD).  People with APD can't process the information they hear in the same way as others because their ears and brain don't fully coordinate. Something adversely affects the way the brain recognizes and interprets sounds, most notably the sounds composing speech."  Id.  As the Veteran's statement raises a service connection claim based on symptoms other than hearing loss, the Board finds it does not have jurisdiction of it.

In summary, the Veteran's symptoms are not consistent with a compensable initial rating for a bilateral hearing loss disability from December 18, 1989, or with a rating in excess of 20 percent from December 16, 2014.
ORDER

Entitlement to a compensable initial rating for a bilateral hearing loss disability from December 18, 1989, and to a rating in excess of 20 percent from December 16, 2014, is denied.


REMAND

Entitlement to an effective date earlier than December 18, 1989
 for the grant of entitlement to service connection 
for a bilateral hearing loss disability

By a rating decision of November 2008, the RO granted service connection for a bilateral hearing loss disability and assigned an evaluation of zero percent, with an effective date of December 18, 1989.  The Veteran filed a notice of disagreement (NOD) in January 2009 with respect to both the level of the disability rating and the effective date of service connection.

With regard to the latter issue, the Veteran argued that VA refused to examine his hearing from 1968 to 2006 on the alleged basis that that there was "no reference in VA files to indicate treatment for injuries in Vietnam."  The Veteran states that, were it not for the allegedly wrongful failure to schedule a VA audiological examination beginning in 1968, "I would have been able to prove my case and I would have been receiving all of the benefits I am now receiving and those I should be receiving."  The Veteran's NOD also referenced lay statements of record that date his hearing loss to 1967 or 1968.

The NOD raises the issue of an earlier effective date, which was not addressed in the statement of the case of February 2011 or the supplemental statement of the case of January 2015.  A statement of the case pertaining to the issue of an earlier effective date for the grant of service connection for bilateral hearing loss has yet to be issued by the RO.  Where a notice of disagreement has been filed but an SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that an SOC may be issued.  See Manlincon v. West, 12 Vet. App. 238 (1999).  Accordingly, the Board will remand this issue.

Entitlement to service connection for a bilateral pes planus disability

The Veteran's entrance medical examination of March 1964 noted his pes planus.  A preexisting injury or disease 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 clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease.  See 38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306 (2015).  

In his testimony at the January 2016 Board hearing, the Veteran stated that he was hospitalized at a military hospital in Okinawa, Japan during service in June or July of 1965 for injury to his feet caused by a parachute jump at an abandoned Japanese air base.  Service treatment records (STRs) that are currently of record do not include the Okinawa hospital records cited by the Veteran.  On remand, the AOJ should attempt to secure any remaining STRs, including any available records relating to the Veteran's service in Okinawa, Japan, and associate them with the Veteran's claims file.

Accordingly, the case is REMANDED for the following action:

1. Take appropriate steps to obtain all available service treatment records of the Veteran, and associate them with the claims file.  In particular, request all in-patient hospital records relating to the Veteran's treatment at a military hospital in Okinawa, Japan in June or July 1965, as described by the Veteran in his January 2016 hearing testimony before the Board.

2. After the above development has been completed, forward the Veteran's claims folder to a podiatrist for an addendum opinion.  The claims file must be reviewed in conjunction with the addendum opinion.  A report should be prepared and associated with the Veteran's VA claims folder.  If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled.  Any testing deemed necessary must be conducted and the results reported in detail.  

The reviewer is requested to render an opinion as to whether any increase in symptoms of the Veteran's preexisting pes planus during service was clearly and unmistakably due to the natural progression of that disability.  For example, did the June or July 1965 injury to his feet caused by a parachute jump at an abandoned Japanese air base aggravate the preexisting pes planus. 

The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached.  

3. When the development requested has been completed, readjudicate the claim of service connection for pes planus based on all the evidence of record.  If the benefit sought is not granted, the Veteran should be furnished a supplemental statement of the case (SSOC) and given the requisite opportunity to respond before the appeal is returned to the Board for further review.

4. Issue a statement of the case that addresses whether the Veteran is entitled to an effective date earlier than December 12, 1989 for the grant of service connection for a bilateral hearing loss disability, based on the January 2009 notice of disagreement.  Inform the Veteran as to how he can perfect an appeal as to this issue.

The appellant has the right to submit additional evidence and argument on the 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 2014).



______________________________________________
Bethany L. Buck
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs