Citation Nr: 21073742 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 17-53 730 DATE: December 10, 2021 REMANDED 1. Entitlement to service connection for a right ankle disability is remanded. 2. Entitlement to service connection for a right foot disability is remanded. 3. Entitlement to service connection for a left ankle disability is remanded. 4. Entitlement to service connection for a left foot disability is remanded. 5. Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from October 1979 to November 1982 and had additional Army Reserve service from 1985 to 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of July 2015 and December 2015 rating decisions. In May 2021, a virtual hearing was held before the undersigned; a transcript is in the record. A February 2017 rating decision notes that on July 31, 2015 the Veteran requested reconsideration of the July 2015 rating decision denying service connection for right and left ankle and right and left foot disabilities. The Regional Office (RO) indicated that the reconsideration request was not timely addressed or prior to the current rating decision and determined that the Veteran filed the request prior to the end of the one-year period for submission of new and material evidence. The RO found that the appeal seeking connection for these disabilities stems from the original claim, and that the claims do not require reopening. 38 C.F.R. § 3.156. Additionally, the February 2017 rating decision notes that on November 15, 2016, the Veteran filed a claim to reopen a claim of entitlement to service connection for bilateral hearing loss that was originally denied in December 2015. The RO also found such claim to be a reconsideration claim because additional evidence was submitted prior to the end of the one-year appeal period for submission of new and material evidence. Therefore, that appeal also stems from the original claim, and the claim does not require reopening. 38 C.F.R. § 3.156. 1., 2. Entitlement to service connection for right ankle and right foot disabilities. On July 2015 VA ankle examination, the examiner opined that it was less likely than not that the Veteran's right ankle disability was related to her service. She noted that the Veteran was seen multiple times (for physical therapy and at the clinic) for a right ankle sprain during basic training from November 1979 to January 1980. She had a re-occurrence of injury in January 1981 and was seen again 3 times, and right ankle X-rays were negative. The examiner noted that there was no documentation of a right ankle disorder until she was seen by a private provider in 2011, approximately 30 years after her discharge from active service, and that there was insufficient medical evidence linking the right ankle to the Veteran's injury in service. On July 2015 VA foot examination, the examiner opined it was less likely than not that the Veteran's right foot disability was related to her service. She noted that in January 1980 the Veteran sought treatment for right foot swelling and bruising that had been ongoing for 4 months. A right foot X-ray was negative, and she was placed in a cast. The Veteran was seen for a foot injury again January 1981 and X-rays were again negative. She initially sought treatment for right foot pain post-service in July 2012. The examiner noted that the Veteran was seen for bilateral foot pain in May 2015 and was found to have bilateral retrocalcaneal spurring. The examiner explained that because the current foot disability was bilateral, she had not had treatment for right foot pain for 34 years, and there was insufficient medical evidence to substantiate a nexus, it is unlikely that the Veteran's current right foot disability was related to her military service. In a June 2021 private medical statement, it was noted that the Veteran reported that she sustained a right ankle injury during service in 1980 and that she underwent right ankle arthroscopy in 2011. The provider opined that it was within the realm of reasonable medical probability that the Veteran's right ankle procedure in 2011 was necessitated due to her 1980 ankle injury in service. The Board finds that the 2015 VA opinions and the June 2021 private opinion to be inadequate. The private opinion is stated in speculative terms, and although the VA opinions discuss the Veteran's reported injuries in service, no attempt was made to identify a likely etiology for the current disability, and the private provider's opinion was cursory and lacked adequate rationale. A remand for an examination to secure a fully adequate medical advisory opinion regarding the etiology of the Veteran's right ankle and right foot disabilities is necessary. 3., 4. Entitlement to service connection for left ankle and left foot disabilities. A July 2015 rating decision denied service connection for left ankle and foot disabilities and noted that although there was a record of treatment for similar disabilities (which were not identified) in service, no permanent residual or chronic disability was shown by the service treatment records (STRs) or demonstrated by evidence following service. A February 2017 rating decision continued the denial of service connection for left ankle and foot disabilities because the Veteran's STRs do not show complaints, treatment, or diagnosis of a left ankle or left foot disability. However, a January 1980 STR notes that the Veteran sought treatment for a left ankle and foot injury, and on examination, there was tenderness to the anterior portion of the lateral malleolus and first metatarsal; X-rays were negative. Additionally, from Jan 10, 1986 to March 19, 1986 (while the Veteran was undergoing Advanced Individual Training during her Army Reserve service (which has been verified)) a February 1986 Reserve STR notes that she sought treatment for left foot/ankle swelling, and the provider noted her reports of left achilles heel and posterior ankle pain and a history of achilles treatment. Although the Veteran has been afforded VA ankle and foot examinations, the examinations did not address her left ankle and foot disabilities. Considering the Veteran's contentions and the state of the medical evidence, an examination to confirm the presence of the claimed left ankle and foot disabilities and ascertain their nature and likely etiology is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 5. Entitlement to service connection for bilateral hearing loss. The Veteran contends that she has bilateral hearing loss due to exposure to noise in service. Her MOS in service was military policeman. Given her occupation and accounts, it may reasonably be conceded that she indeed was exposed to some hazardous levels of noise in service. VA medical evidence confirms she has a bilateral hearing loss disability (as defined in 38C.F.R. §3.385). On December 2015 VA hearing loss examination, the examiner opined that it was less likely than not that the Veteran's bilateral hearing loss disability was related to her service. He explained that the Veteran entered service in 1979 with normal hearing bilaterally, continued to have normal hearing in both ears in 1981, had normal hearing in 1989, and reported that the onset of her hearing loss and tinnitus was in May 2015. In September 2017, the December 2015 examiner was asked to provide an addendum opinion that considered newly submitted STRs that showed a 1981 hearing profile. The examiner opined that it was still less likely than not (even considering the new evidence) that the Veteran's bilateral hearing loss disability was related to her service. He noted that the 1981 STRs suggest that the Veteran had a mild to moderate sensorineural hearing loss in the right ear and a moderate high frequency loss in the left ear. The examiner indicated that although she may have had hearing loss in November 1981, she did not have hearing loss earlier that year in February, nor did she have hearing loss in 1989, 8 years after leaving the military. In addition, on medical reports dated in December 1985 and July 1987, she was asked if she had hearing loss, and responded "no." The examiner opined that if the November 1981 examination was accurate and the Veteran did have hearing loss, it appeared that the loss was temporary and not permanent, as confirmed by future examinations. He further indicated that, unfortunately, we have not been able to confirm the exact degree and configuration of the Veteran's current hearing loss, due to the fact that her results on previous examinations, have not be accurate, reliable and consistent. The Board finds that the opinion (with addendum) is inadequate for rating purposes. Under governing caselaw, the absence of a hearing loss in service is not fatal to a claim of service connection for hearing loss (see Hensley v. Brown, 5 Vet. App. 155, 159 (1993)). Although the examiner did acknowledge the 1981 hearing profile, he opined that such hearing loss was temporary, suggesting that there was no hearing loss disability in service. Also, he declined to identify an alternate etiology for the hearing loss, and the factual premise is somewhat factually inaccurate because the examiner did not consider that the Veteran was still in the Army Reserve when he stated that "nor did she have hearing loss in 1989, which was 8 years after leaving the military." Furthermore, mere passage of time without treatment is an insufficient basis for finding that there is no relationship between a current disability and an injury in service, and in previous statements, the Veteran denied postservice occupational or recreational noise exposure. Therefore, remand for an examination to obtain an adequate medical advisory opinion is necessary. Evidence of record indicates that the Veteran has received ongoing treatment for her right and left ankle and right and left foot disabilities and bilateral hearing loss from VA and private providers. Records of such treatment are pertinent evidence, and all outstanding records of the treatment must be obtained and considered. Notably, VA records are constructively of record. The matters are REMANDED for the following: 1. Advise the Veteran that complete records of any private evaluations or treatment she received for her right and left ankle and right and left foot disabilities and bilateral hearing loss are pertinent evidence, and any outstanding must be sought. Ask her to submit authorizations for VA to secure all such private outstanding records, and secure for the record complete clinical records of the evaluations and treatment. If any private records sought are not received pursuant to a VA request, the Veteran should be advised that ultimately it is her responsibility to ensure that pertinent private treatment records are received. Specifically secure for association with the record complete clinical records of all updated VA evaluations and treatment the Veteran has received for her ankles and feet and hearing loss since October 2017. 2. Thereafter, arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of her right and left ankle and right and left foot disabilities. The Veteran's record (to include her active duty and Reserve STRs) must be reviewed. The examiner should: (a) Identify (by diagnosis) each right and left ankle and right and left foot disability entity found/or shown by the record during the pendency of the instant claim. (b) Identify the likely etiology for each right and left ankle and right and left foot disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that such disability began in (or is otherwise etiologically related to) the Veteran's military service/alleged injury therein? (c) If a diagnosed ankle or foot disability is determined to be unrelated to service, identify the etiology for the disability that is considered to be more likely, and explain why that is so. All opinions must include rationale that cites to supporting factual data and medical principles. 3. Also arrange for an audiological evaluation of the Veteran to ascertain the likely etiology of her bilateral hearing loss disability. Her record must be reviewed by the examiner in conjunction with the examination. The examiner should acknowledge that the Veteran's occupation in service (as a military policeman) likely exposed her to hazardous levels of noise in service. On review of the record, and examination and interview of the Veteran, the examiner should: (a) Identify the likely etiology of the Veteran's hearing loss disability. Specifically, is it at least as likely as not (a 50% or better probability) that such is related to the Veteran's service (to include as due to her exposure to hazardous levels of noise therein)? (b) If the Veteran's hearing loss is determined to be unrelated to service, identify the etiology for the disability that is considered to be more likely (and explain why that is so). All opinions must include complete rationale. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.