Citation Nr: 21075452 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-49 537 DATE: December 20, 2021 REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for a bilateral foot condition other than pes planus, to include hammertoes, varus deformity, hyperkeratosis, and hyperpronation, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from March 1982 to March 1986. These matters are before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). This case was previously before the Board on appeal from an October 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2019 decision, the Board denied the claims for entitlement to service connection for left ear hearing loss and bilateral pes planus. The Veteran appealed the Board's decision to the Court. In a May 2021 memorandum decision, the Court vacated the Board's August 2019 decision and remanded the matters for readjudication. The matters have now been returned to the Board. Unfortunately, the issues on appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these claims so that the Veteran is afforded every possible consideration. 1. Entitlement to service connection for left ear hearing loss is remanded. The Board finds that an addendum medical opinion is required to address the issues raised in the Court's May 2021 memorandum decision. In its decision, the Court concluded that the VA medical opinion of record is inadequate to enable the Board to render a thorough discussion of all the pertinent evidence in the Veteran's case. In this regard, the Court found that the September 2017 VA examination report, the only relevant VA examination of record, does not contain sufficient medical analysis to support the conclusion that the Veteran's left ear hearing loss is less likely than not caused by service because the examiner failed to provide an adequate rationale for his opinion, attributing his left ear hearing loss to post-service noise exposure, stating, without citing to any evidence of record, that the Veteran did not use hearing protection as a recreational hunter post-service and that his hearing loss began 20 to 30 years following service. The Board finds that the September 2017 VA examiner failed to provide an adequate rationale for his opinion, including by assuming, without evidence, that he did not use hearing protection as a recreational hunter post-service and that his hearing loss began 20 to 30 years following service. As the September 2017 opinion appears to be based on an inaccurate factual premise, i.e. that the Veteran's left ear hearing loss began many years after the Veteran's service and stating without evidence from the Veteran that he did not use hearing protection when hunting recreationally, it is inadequate. Reonal v. Brown, 5 Vet. App. 458, 46061 (1993). Further, upon examination, the September 2017 VA examiner opined that the Veteran's bilateral hearing loss is less likely than not related to military noise exposure, finding that the Veteran's audiometric thresholds were within normal limits on separation examination, with no findings related to shifts in audiometric thresholds, and therefore there was no evidence that his bilateral hearing loss was related to noise exposure in service. However, the fact that there was no hearing loss in service is not dispositive of the issue and an opinion based on this fact is inadequate. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Finally, the September 2017 VA examiner cited to a 2005 study by the Institute of Medicine (IOM) which found that there was an insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such exposure. However, the Board notes that the United States Court of Appeals for Veterans Claims (Court) recently determined that this IOM report contains apparent qualifiers or contradictions that may impact the probative value of medical opinions that rely upon it. See McCray v. Wilkie, 31 Vet. App. 243 (2019). Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Because the Court has determined the September 2017 VA medical opinion is insufficient to fairly adjudicate the Veteran's claim, remand is warranted to obtain an adequate medical opinion. The addendum medical opinion must be thoroughly responsive to the concerns outlined by the Court in the May 2021 memorandum decision. 2. Entitlement to service connection for bilateral pes planus is remanded. 3. Entitlement to service connection for a bilateral foot condition other than pes planus, to include hammertoes, varus deformity, hyperkeratosis, and hyperpronation is remanded. First, the Board finds that an addendum medical opinion is required to address the issues raised in the Court's May 2021 memorandum decision. The Board acknowledges the Veteran's representative has asserted that the previous VA examination conducted in October 2016 was inadequate. Specifically, he contended that the October 2016 VA examination erroneously considered in-service foot pain to be a temporary aggravation, resolving with treatment with orthotics, without addressing the use of orthotics itself as evidence of in-service aggravation. Moreover, the Court found that the Board erred by failing to address entitlement to service connection for other foot conditions. On examination, the October 2016 examiner stated that there was no evidence of worsening during service. However, this response fails to address the Veteran's statements in which he asserts that he experienced increased pain in his feet during long marches and needed to be issued custom arch supports to alleviate the pain and has experienced ongoing pain since that time when he does not wear arch support orthotics. In other words, his lay statements seem to reflect a permanent need for orthotics that began in service, which contradicts the examiner's finding that the in-service onset of bilateral foot pain represented a temporary aggravation that resolved without further symptoms. Dalton v. Peake, 21 Vet. App. 23 (2007). In light of the foregoing, the Board finds the claim must be remanded so that another opinion can be obtained. Once VA undertakes the effort to provide an examination or medical opinion when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for the purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Because the record does not contain a medical opinion sufficient to fairly adjudicate the Veteran's claim, the Board finds that remand is necessary. On remand, the RO must obtain a medical opinion from a qualified medical professional that is adequate for the Board to make an informed decision on the Veteran's claim. See Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). The addendum medical opinion, which should be obtained from a VA physician of appropriate expertise, (i.e. a podiatrist) must be thoroughly responsive to the concerns outlined by the Court in the May 2021 memorandum decision. Moreover, pursuant to Robinson v. Peake, 21 Vet. App. 545 (2008), VA must adjudicate all theories of entitlement reasonably raised by the record. In this case, no medical opinion has been obtained to address whether the Veteran's diagnosed bilateral foot conditions, other than pes planus, to include hammertoes, varus deformity, hyperkeratosis, and hyperpronation, were incurred in or caused by service. On remand, all bilateral foot conditions diagnosed during the pendency of the claim must be addressed, even if not currently present on examination or deemed resolved, prior to VA's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Accordingly, the matters are REMANDED for the following action: 1. Forward the Veteran's claims file, including a copy of this REMAND, to a VA audiologist to provide an addendum medical opinion addressing the nature and etiology of the Veteran's left ear hearing loss. The examiner must review the claims file in its entirety and the review should be noted in the report. Thereafter, the examiner is asked to provide a fully-articulated medical opinion with respect to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left ear hearing loss had its onset during active service, within one year of separation, or is otherwise related to an in-service disease, event, or injury, to include acoustic trauma caused by military noise exposure? The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is reminded that the absence of documented hearing loss during service cannot serve as the sole basis for a negative finding. The lay statements of record must be considered and weighed in making the determination as to whether a nexus exists between the claimed disease and the Veteran's military service. In providing the requested opinion, the examiner should refrain from placing any reliance on the 2005 study from the Institute of Medicine, pertaining to delayed onset of hearing loss, which the Court has determined contains apparent qualifiers or contradictions that may impact the probative value of medical opinions that rely upon it. The examiner must set forth a complete rationale for any conclusion reached, citing to the examiner's clinical experience, medical expertise, and established medical principles, as well as evidence in the Veteran's claims file, as necessary. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. 2. Forward the Veteran's claims file to a qualified VA medical (M.D.) examiner (i.e., a podiatrist) to provide addendum medical opinions. A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and that review must be noted in the report. Thereafter, the examiner is asked to provide fully-articulated medical opinions addressing the following: Pes Planus (a) The examiner is asked to provide an opinion regarding whether the Veteran's pre-existing pes planus worsened during his military service. If so, was the increase clearly and unmistakably due to the natural progress of the disease? Other Foot Conditions (c) Identify all currently-diagnosed foot conditions other than pes planus. (d) Is it at least as likely as not (50 percent or greater probability) that any currently-diagnosed foot condition was incurred in or caused by any in-service disease, event, or injury? In providing the requested opinion(s), the examiner must fully consider and address the pertinent evidence of record (outlined in the body of this remand), to include the Veteran's service treatment records showing treatment for corns in June 1982; his lay contentions that his foot problems began in service due to wearing standard issue boots without support, and post-service medical records. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is advised that the lack of documented treatment for the claimed disability during service cannot serve as the sole basis for a negative finding. The examiner is advised that the Veteran is competent to report his medical history and must be considered and weighed in making the determination as to whether a nexus exists between the claimed diseases and military service. (Continued on the next page) The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.