Citation Nr: 21068801 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 11-28 896A DATE: November 12, 2021 ORDER Entitlement to a 100 percent disability rating for loss of use of both feet, due to bilateral foot corns and calluses is granted throughout the period under appeal, subject to the criteria applicable to the payment of monetary benefits. REMANDED Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a right eye disability is remanded. Entitlement to a compensable disability rating for bilateral hearing loss is remanded. INTRODUCTION The Veteran served on active duty from May 1969 to April 1971. In February 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. When this case was previously before the Board in April 2018, the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. FINDING OF FACT The Veteran's bilateral foot corns and calluses cause functional impairments that preclude unassisted balance and propulsion to such degree that the Veteran would be equally well served by use of suitable prosthetic appliance. CONCLUSION OF LAW The criteria for the loss of use of both feet have been met. 38 U.S.C. §§ 1114 (l), 5107; 38 C.F.R. §§ 3.102, 3.350(b), 4.71(a), Diagnostic Code 5110. REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As explained below, the Board has determined the evidence currently of record is sufficient to grant entitlement to the loss of use of both feet, with the accompanying special monthly compensation (SMC) based on the loss of use of both feet. Therefore, no further development is required under 38 U.S.C. §§ 5103, 5103A or 38 C.F.R. § 3.159. Legal Criteria Loss of use of a hand or foot is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance. 38 C.F.R. § 3.350 (a)(2). The determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350 (a)(2). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran initiated a claim for an increased rating for his left and right foot corns and calluses in August 2006. Thereafter, the RO confirmed and continued his previously assigned disability evaluations in a September 2007 rating decision. This appeal followed. In this case, there is no question the Veteran has significant impairments in his feet. However, the questions in this case are whether the disabilities are of such significance to cause the functional loss of use of both feet, and if so, whether those impairments were caused by his service-connected corns and calluses. As indicated above, a focus of the loss of use special monthly compensation provision noted in 38 C.F.R. § 3.350 is whether a veteran exhibits functional impairments of such severity that he or she would be equally well served by an amputation with suitable prosthetic at the site of the disabled joint. In plain terms, the question the Board must answer is whether a person who has undergone bilateral amputations at the ankle level and obtained suitably functioning prosthetics can ambulate as well or better than this Veteran can, given his bilateral foot impairments resulting from his service-connected disabilities. Initially, the Board notes a July 2007 VA examination, which was performed after the initiation of the Veteran's claim. During examination the Veteran reported he was unable to walk more than 150 feet as a result of the pain in his feet. The examiner noted large calluses on his feet, which were thick and objectively painful to pressure. The Veteran underwent a second VA examination in July 2017, at which time he reported using a cane as a result of his foot pain. The examiner again noted pain with weight-bearing and walking. The Veteran underwent his most recent VA examination in September 2019. He continued to report experiencing pain in his feet with weight-bearing and ambulation. The examiner found the Veteran's pain with weight-bearing and ambulation resulted in a fall risk. As a result, the examiner indicated the Veteran's service-connected disabilities require him to use a motorized scooter. Further, the examiner stated the Veteran cannot stand for any length of time and cannot walk more than a half a block. Though the examiner did diagnose other foot maladies, she concluded that she could not determine which of the Veteran's foot conditions cause his functional impairments. In sum, the Board finds the Veteran's bilateral foot disabilities render him at least as functionally impaired, if not worse, than a person who has adequately functioning prosthetic devices following amputation at the ankle level. Further, the recent VA examiner concluded she would not be able to state which of the Veteran's service-connected and nonservice-connected disabilities cause his significant functional impairments. When it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). As such, the Board is satisfied that the evidence is in support of a finding that the Veteran is entitled to a 100 percent disability rating for the loss of use of both feet throughout the appellate period. In closing, the Board notes this decision affords the Veteran the maximum benefit allowed under the law, as a combined impairments rating based on the loss of use of both feet is a more favorable evaluation than separate and distinct ratings for the Veteran's left and right lower foot disabilities. This follows, because this will also result in the assignment of additional SMC and other collateral benefits that would otherwise have not been available. REASONS FOR REMAND Missing Records Next, the Board notes that in the April 2018 remand, the RO was instructed to conduct all indicated development to obtain the Veteran's outpatient treatment records from the Houston VAMC from 1971 to present. If those records could not be obtained, the RO was instructed to prepare a formal finding of unavailability for the record. Though the RO did prepare a formal finding indicating the Veteran's treatment records from January 1, 1971 to August 31, 2002 were unavailable for review, the Board finds additional development is possible and must be achieved. In particular, the Board notes a letter from the Houston VAMC dated in June 2019, which indicates the Veteran's records may have been retired to the VA Federal Records Center. In a subsequent response the Houston VAMC indicated the Veteran's records were not located at that facility; however, there is no indication the RO requested those records from the Federal Records Center. Because these records are in the possession of a federal agency, VA must attempt to obtain those records until it determines the records either do not exist or that any additional attempts to obtain those records would be futile. See 38 C.F.R. § 3.159 (c)(1). Since these records may contain relevant and material evidence as to the Veteran's right eye and psychiatric disability claims, the Board finds all indicated development is necessary to obtain these records. Increased Disability Ratings Finally, the Board notes the Veteran most recently underwent a VA examination to assess his hearing loss disability in November 2016. In the course of the April 2018 remand, the RO was instructed to obtain a current examination to assess the severity of the condition. It appears the RO initially attempted to schedule an examination in September 2019; however, at that time the Veteran had relocated to a new address. The RO then attempted to reschedule that examination, but as a result of the COVID-19 epidemic the VAMC was unable to conduct an in-person examination of the Veteran. Based on the foregoing, the Board finds this examination must be rescheduled and conducted. Accordingly, the case is REMANDED for the following actions: 1. Undertake appropriate development to obtain the Veteran's treatment records from the Houston VAMC from 1971 to present, to include contacting the VA Federal Records Center. If any requested records are deemed unavailable, the record should be annotated to reflect such and the Veteran notified. If unavailable, a formal finding should be prepared, outlining all efforts made to obtain those records. 2. Then, afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of his service-connected bilateral hearing loss disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, Counsel 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.