Citation Nr: 21068637 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 15-34 930 DATE: November 12, 2021 REMANDED Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease and strain, is remanded. Entitlement to service connection for a recurrent right foot disability, to include flatfoot (pes planus) and peripheral neuropathy, is remanded. Entitlement to service connection for a recurrent left foot disability, to include flatfoot (pes planus) and peripheral neuropathy, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active service from June 1964 to March 1967. The Veteran served in the Republic of Vietnam. In September 2018, the Board of Veterans" Appeals (Board), in pertinent part, denied service connection for lumbar strain, bilateral flatfoot, Raynaud's syndrome, cold injury residuals, bilateral hearing loss, and tinnitus. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In January 2020, the Court vacated the September 2018 Board decision; determined that the Board erred in failing to adjudicate the issue of service connection for peripheral neuropathy; and remanded the Veteran's appeal to the Board for additional action. In January 2021, the Board remanded the issues of service connection for a lumbar spine disability to include degenerative disc disease and strain, bilateral flatfoot, Raynaud's syndrome, cold injury residuals, peripheral neuropathy of the feet, bilateral hearing loss, and tinnitus to the Agency of Original Jurisdiction for additional development. In August 2021, the Agency of Original Jurisdiction granted service connection for Raynaud's syndrome and cold injury residuals of the right foot, the left foot, the right hand, the left hand, the right ear, and the left ear; tinea unguium of the feet; and tinnitus. 1. Entitlement to service connection for a lumbar spine disability, to include degenerative disc disease and strain, is remanded. In its January 2021 Remand instructions, the Board directed that action be taken to obtain clinical documentation from R. Rozelle, M.D. In February 2021, the Veteran submitted a completed Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), VA Form 21-4142, for Dr. Rozelle and a treatment record from Dr. Rozelle. The Agency of Original Jurisdiction did not subsequently request clinical documentation from Dr. Rozelle. The Agency of Original Jurisdiction's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Clinical documentation dated after July 2021 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran asserts that service connection for a lumbar spine disability is warranted as the claimed disability was incurred secondary to his service connected bilateral foot disabilities. In light of the award of service connection for right foot and left foot Raynaud's syndrome, cold injury residuals, and tinea unguium, the Board finds that further VA spine examination is needed to address the relationship, if any, between the diagnosed lumbar spine disability and the service connected right foot and left foot disabilities. 2. Entitlement to service connection for both a recurrent right foot disability to include flatfoot and peripheral neuropathy and a recurrent left foot disability, to include flatfoot and peripheral neuropathy is remanded. In light of the award of service connection for right foot and left foot Raynaud's syndrome, cold injury residuals, and tinea unguium, the Board finds that further VA foot examination is needed to address the relationship, if any, between the claimed right foot and left foot disabilities and the service connected right foot and left foot disabilities. 3. Entitlement to service connection for hearing loss is remanded. In its January 2021 Remand instructions, the Board requested that the Veteran be schedule for further VA audiological examination. The examiner was directed to opine whether the diagnosed hearing loss disability was at least as likely as not incurred as a result of hazardous noise exposure during service and whether the delayed onset hearing loss was due to service. The examiner was to consider the relevant medical literature the Veteran had submitted in support of his claim for service connection. The report of a March 2021 VA audiological examination states that "the standard evidence provided does not indicate there was a worsening of hearing while in the military" and "given normal hearing at discharge, and no significant shift in thresholds from induction to discharge, hearing impairment is less likely than not (less than 50\50 probability) caused by or aggravated by military noise exposure." The examiner did not address whether the delayed onset hearing loss was due to service or the relevant medical literature the Veteran submitted in support of his claim for service connection. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given the cited deficiencies and the failure to comply with the Board's remand instructions, further VA audiological evaluation is needed. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider, including R. Rozelle, M.D., who has treated any lumbar spine, right foot, left foot, and bilateral hearing loss disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain any VA treatment records not of record, to include those pertaining to treatment after July 2021. 3. Schedule the Veteran for a VA spine examination conducted by a medical doctor to assist in determining the nature and etiology of any identified lumbar spine disability, and any relationship to active service and the service connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all lumbar spine disabilities found or shown by the record. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified lumbar spine disability had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified lumbar spine disability is due to or the result of the right foot and left foot Raynaud's syndrome, cold injury residuals, and tinea unguium and the other service connected disabilities. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified lumbar spine disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the right foot and left foot Raynaud's syndrome, cold injury residuals, and tinea unguium and the other service connected disabilities. 4. Schedule the Veteran for a VA foot examination conducted by a medical doctor to assist in determining the nature and etiology of any identified right foot and left foot disabilities, and any relationship to active service and the service connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all foot disabilities found or shown by the record. If flatfoot (pes planus) is not found, the examiner should specifically state that fact. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified foot disability had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified foot disability is due to or the result of the right foot and left foot Raynaud's syndrome, cold injury residuals, and tinea unguium and the other service connected disabilities. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified foot disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the right foot and left foot Raynaud's syndrome, cold injury residuals, and tinea unguium and the other service connected disabilities. 5. Schedule the Veteran for a VA neurological examination conducted by a medical doctor to assist in determining the nature and etiology of any identified right foot and left foot neurological disabilities and any relationship to active service and the service connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all foot neurological disabilities found or shown by the record. If peripheral neuropathy of the feet is not found, the examiner should specifically state that fact. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified foot neurological disability had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified foot neurological disability is due to or the result of the right foot and left foot Raynaud's syndrome, cold injury residuals, and tinea unguium and the other service connected disabilities. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified foot neurological disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the right foot and left foot Raynaud's syndrome, cold injury residuals, and tinea unguium and the other service connected disabilities. 6. Schedule the Veteran for a VA audiological examination to determine the nature of any identified hearing loss disability and any relationship to active service. The examiner must review the record, including the medical publications cited in the Veteran's October 2013 correspondence, and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all hearing loss disabilities found or shown by the record. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified hearing loss disability had its onset during active service or is related to any incident of service, including the Veteran's in service noise exposure. The examiner should specifically address the medical authorities provided by the Veteran in support of his claim for service connection. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Emily A. Kotroco 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.