Citation Nr: 21000358 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 13-26 120 DATE: January 5, 2021 REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to an increased rating for hiatal hernia is remanded. Entitlement to an increased rating for right foot calluses is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1986 to July 1988. The Veteran had additional periods of service in the Army National Guard. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In May 2018, the Board denied entitlement to service connection for left ear hearing loss; and dismissed the claims of entitlement to a rating in excess of 10 percent for a hiatal hernia and entitlement to a rating in excess of 10 percent for right foot calluses. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In December 2018, the United States Court of Appeals for Veterans Claims granted a Joint Motion for Partial Remand and vacated the May 2018 decision of the Board of Veterans’ Appeals (Board) to the extent that it denied entitlement to service connection for left ear hearing loss; and dismissed the claims of entitlement to a rating in excess of 10 percent for hiatal hernia and in excess of 10 percent for right foot calluses, and remanded those issues to the Board for additional action. In September 2020, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to an increased rating for hiatal hernia is remanded. 2. Entitlement to an increased rating for right foot calluses is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claims for entitlement to an increased for a hiatal hernia and entitlement to an increased rating for right foot calluses. VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). The record shows that the Veteran was most recently provided VA esophageal and skin examinations in July 2013, over eight years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, when available evidence is too old for an adequate evaluation of the current condition, VA’s duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the most recent examination remote, but the examinations appear to no longer indicate the Veteran’s current level of disability. Specifically, the Board notes that, during a September 2020 Board hearing, the Veteran alleged a worsening in severity of both service-connected disabilities. Therefore, the Board finds that not only are the most recent examinations remote, but the examinations appears to no longer indicate the Veteran’s current level of disability. The Board finds that updated examinations are warranted to access the current severity and manifestations of the service-connected disabilities. After all outstanding medical records are associated with the record, more contemporaneous examinations are needed to rate the claims for increased ratings for hiatal hernia and right foot calluses. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of these claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. 3. Entitlement to service connection for left ear hearing loss is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for left ear hearing loss. In a December 2018 decision, the parties to the Joint Motion for Partial Remand agreed that the February 2008 VA examination, on which the Board's May 2018 decision was predicated, was inadequate. The Board has no discretion and must remand the appeal for compliance with the United States Court of Appeals for Veterans Claims' December 2018 Order vacating the Board's May 2018 decision and remanding the matter for further adjudication consistent with the Joint Motion for Remand. Stegall v. West, 11 Vet. App. 268 (1998); Forcier v. Nicholson, 19 Vet. App. 414 (2006). To address the concerns of the Court and the parties of the Joint Motion, the Board finds that, because of the inadequacy of the February 2008 VA opinion and the absence of additional evidence pertaining the to the claimed disability, a medical opinion is necessary for adjudication of the service connection claim. Because the adequacy of the February 2008 VA audiology examination was agreed to be inadequate, the Board finds that further examination is needed to determine whether any portion of the Veteran’s left ear hearing loss is etiologically related to, incurred in, or aggravated by the Veteran's service. Therefore, on remand, an examination should be scheduled and an opinion as to the etiology of any left ear hearing disability must be requested. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). VA attention has been directed to a sponsored Institute of Medicine (IOM) report on delayed onset hearing loss. While the report states that "based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely" that the onset of hearing loss begins years after noise exposure occurs, that statement does not indicate the full extent of the report's findings pertinent to the matter. Comm. on Noise-Induced Hearing Loss and Tinnitus Assoc'd with Military Service from World War II to the Present, Inst. of Medicine, Noise and Military Serv.: Implications for Hearing Loss and Tinnitus, at 47 (Larry E. Humes, Lois M. Joellenbeck, and Jane S. Durch eds., 2005). While a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM report found that "an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure." Comm. on Noise-Induced Hearing Loss and Tinnitus Assoc'd with Military Service from World War II to the Present, Inst. of Medicine, Noise and Military Serv.: Implications for Hearing Loss and Tinnitus, at 203-04 (Larry E. Humes, Lois M. Joellenbeck, and Jane S. Durch eds., 2005. Therefore, the IOM report's language may support a theory of service connection involving delayed onset of a Veteran's perception of hearing loss such that a VA examiner's citation of the report should contemplate all of the pertinent aspects of its findings. Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential). The matters are REMANDED for the following action: 1. Obtain all VA treatment records that are not already of record. 2. Schedule the Veteran for a VA examination to determine the current severity of service-connected hiatal hernia. The examiner must review the claims file and should note that review in the report. Any indicated diagnostic tests and studies must be accomplished. The examiner should describe all symptomatology. The rationale for all opinions should be provided. The examiner should state whether or not there is pain, vomiting, material weight loss, hematemesis, melena, moderate anemia, recurrent epigastric distress, dysphagia, pyrosis, regurgitation, or substernal arm or shoulder pain. The examiner should opine whether the symptoms are productive of severe impairment of health, considerable impairment of health, or a lesser level of impairment of health. 3. Schedule the Veteran for a VA examination to determine the current level of severity of his right foot calluses. The examiner must review the claims file and must note that review in the report. Any indicated studies should be performed. The examiner must provide all information required for rating purposes, including whether the right foot calluses result in any scars are tender, painful, unstable or otherwise symptomatic. Unretouched color photographs of the affected areas should be included in the examination report. The examiner should provide a statement as to the area, in square inches or square centimeters, of the skin affected. The examiner should also opine whether the calluses cause any scars that are deep, unstable, or painful. The examiner should state whether the calluses result in any functional impairment of the foot. The examiner should state whether the calluses result in moderate, moderately severe, or severe disability of the right foot. The examiner should opine whether 5 percent or more of the body is affected by the calluses of the right foot. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 4. Schedule the Veteran for a VA audiology examination, with an examiner who has not previously examined the Veteran, to diagnose and obtain an opinion regarding the etiology of left ear hearing loss. The examiner must review the claims file, to include this Remand, the Veteran's lay statements, including hearing testimony, concerning in-service noise exposure, hearing loss symptoms, and the IOM report concerning an individual's delayed awareness on the effects on hearing from noise, and the onset of current symptomatology, and should indicate review of the file in the examination report. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any portion of the left ear hearing loss disability is etiologically related to active service or any event, disease, or injury during service, including whether any left ear hearing disability (1) began during active service, (2) was noted during service with continuity of the same symptomatology since service, (3) was caused by any service-connected disability or treatment for any service-connected disability, to include tinnitus and right ear hearing loss, or (4) has been aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disability or treatment for any service-connected disability, to include tinnitus and right ear hearing loss. The examiner is asked to discuss any significance of the Veteran’s noise exposure during active duty training for service as a cannoneer and assistant gunner from 1960 to 1966 as it relates to the current disability. The examiner is advised that the Veteran is competent to report symptoms and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner must consider and discuss those lay statements and should reconcile the opinion with any previous opinions of record. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records of left ear hearing loss. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.