Citation Nr: 18155004 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-50 750 DATE: December 4, 2018 REMANDED Entitlement to service connection for degenerative arthritis of the spine is remanded. Entitlement to service connection for a foot disability, to include bilateral pes planus and bone spurs, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for substance abuse is remanded. REASONS FOR REMAND 1. Entitlement to service connection for degenerative arthritis of the spine is remanded. In September 2013, the Veteran was afforded a VA examination to assess the nature and etiology of his claimed back disability. A statement of the case (SOC) was issued in September 2016. Thereafter, additional VA medical records pertinent to the Veteran’s back disability were associated with the claims file, including a February 2018 physiatry evaluation indicative that the Veteran’s current back complaints are related to a military injury in 1980. Additional VA medical records have also been associated with the Veteran’s claims file since the 2016 SOC. However, the RO has not issued a supplemental statement of the case (SSOC) since the receipt of this additional evidence. The duty to readjudicate based upon VA-developed records cannot be waived without potential prejudice to the Veteran. Disabled Am. Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Therefore, a remand is required. 2. Entitlement to service connection for a foot disability, to include bilateral pes planus and bone spurs, is remanded. The Veteran is seeking service connection for his bilateral foot disability. The Veteran was afforded a VA examination in September 2013 to assess the nature and etiology of his bilateral foot disability. The Veteran was diagnosed with bilateral plantar fasciitis. Diagnostic testing was also performed, including imaging studies, which showed bilateral moderate calcaneal spurs. Significantly, the examiner opined that the Veteran’s foot condition is less likely than not related to service. In support of this conclusion, the examiner reasoned that service treatment records are silent as to any history of foot injury in service, and that plantar fasciitis is almost always a self-limited condition that occurs in middle-aged individuals with known risk factors. However, review of the Veteran’s service treatment records show that the Veteran did report and treat for foot injuries in service. In March 1980, the Veteran reported soreness in the left foot. March 1981 service treatment records show that the Veteran inverted his left ankle while playing basketball. Multiple other sport-related injuries were documented as well. Furthermore, while the examiner provided a rationale for his etiological opinion pertinent to plantar fasciitis, no rationale or discussion is shown with regard to the Veteran’s diagnosed bone spurs. The evidence shows that the examiner did not adequately consider the Veteran’s medical record, and rendered an opinion without due consideration to potentially material facts. As such, the Board finds that the September 2013 VA examination is inadequate for rating purposes. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.). Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Accordingly, a remand is required for a new VA examination and nexus opinion etiology of the Veteran’s foot disabilities. 3. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his bilateral hearing loss is due to noise exposure during active service. In September 2013, the Veteran underwent a VA examination. The examiner determined that the Veteran’s bilateral hearing loss was not the result of noise exposure during military service. The examiner reasoned that the Veteran had normal hearing sensitivity in both ears at the time of his separation exam in July 1981. However, the examiner further determined that the Veteran’s service-connected tinnitus was the result of military noise exposure. In fact, the examiner reasoned that the noises the Veteran was exposed to in service could be enough to change the Veteran’s auditory program. The Board notes that the Veteran’s in-service noise exposure has been conceded. The Board further notes that the absence of in-service evidence of a hearing disability is not fatal to a claim of service connection for hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As such, the Board finds that this examiner’s rationale is inadequate as he solely relied on the absence of a hearing loss disability during service. As such, an additional VA examination must be provided on remand. 4. Entitlement to service connection for substance abuse is remanded. The Veteran claims entitlement to service connection for substance abuse, to include as secondary to service-connected disabilities. As an initial matter, the Board notes that service connection on a direct basis for substance abuse is precluded by law. VA’s General Counsel has concluded that direct service connection for a disability that is a result of a claimant’s own abuse of alcohol or drugs (a substance abuse disability) is precluded for purposes of all VA benefits for claims filed after October 31, 1990. VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (1999); see also VAOPGCPREC 2-98, 63 Fed. Reg. 31,263 (1998). VA General Counsel precedent opinions are binding on the Board. Brooks v. Brown, 5 Vet. App. 484 (1993). Service connection is possible for a substance abuse disorder acquired as secondary to, or as symptoms of, a service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Here, the Veteran is currently service-connected for PTSD. To warrant entitlement to secondary service connection, the Veteran needs to establish that his current disability was caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. The Board notes that the Veteran was afforded a VA examination in February 2018 to assess the nature and etiology of his PTSD. He has since been service-connected for PTSD, which has been evaluated as 100 percent disabling. Pertinently, the examination is suggestive that the Veteran’s claimed substance abuse may be secondary to his PTSD. However, there is no examination of record to assess the nature and etiology of the Veteran’s claimed substance abuse disorder. Rather, the claim has been adjudicated solely on a direct basis. Thus, as there is evidence of a current disability, a service-connected disability, and an indication that the two may be related, the Veteran should be afforded a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 81-86 (2006). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and private medical records and associate them with the claims file. Any responses associated with these requests should be memorialized in the Veteran’s claims file. 2. After the above development is accomplished, schedule the Veteran for a VA examination of his claimed foot disability. The claims folder must be provided to and reviewed by the examiner as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All tests, studies, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. First, the examiner must identify all current foot disorders found to be present. Then, for each diagnosis, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that the foot disorder manifested in service, or within a year of separation therefrom, or is otherwise causally or etiologically related to the Veteran’s military service. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his bilateral hearing loss. Access to records in the Veteran’s claims file should be made available to the examiner for review in connection with his or her opinion. After examining the Veteran and reviewing the record, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s bilateral hearing loss was incurred in service or is otherwise causally related to the Veteran’s active service or any incident therein. In rendering an opinion, the examiner must discuss the lay statements of record regarding the onset of the hearing loss disability. A clear explanation for the VA medical opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The Veteran must also be afforded a VA examination to determine the current nature and etiology of his claimed substance abuse disorder. Any indicated evaluations, studies, and tests should be conducted. • The examiner must indicate whether the Veteran has had a substance abuse disorder at any time in the appellate period that has been caused by his PTSD. • The examiner must also indicate whether the Veteran has a substance abuse disorder that has been aggravated by his PTSD. For any aggravation found, the examiner must to the best of her or his abilities state the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. All opinions expressed by the examiner must be accompanied by a complete rationale. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.C., Associate Counsel