Citation Nr: 21006488 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-40 690A DATE: February 4, 2021 REMANDED Entitlement to a compensable rating for right ear hearing loss is remanded. Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for a left foot disability, to include plantar fasciitis, is remanded. Entitlement to service connection for a right foot disability, to include plantar fasciitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1990 to September 1993. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. Thereafter, in January 2020, the Board remanded, in part, these issues for additional development. Pursuant to the 2020 remand directives, the RO obtained the Veteran’s outstanding VA treatment records, and he was then scheduled for VA examinations. The requested records were submitted and VA examinations were obtained. However, another remand is need for reasons given below. Stegall v. West, 11 Vet. App. 268 (1998). Subsequent to the January 2020 Board remand, the Veteran’s request for a 50 percent evaluation for his PTSD was granted in an August 2020 rating decision for the entire period on appeal. Thus, as he specifically requested an evaluation of 50 percent in the October 2014 notice of disagreement (NOD), the grant of the requested evaluation is a full grant of the benefit sought on appeal and the claim is no longer in front of the Board. The Veteran was informed in the August 2020 rating decision the issue was no longer on appeal as his request was fully satisfied, and he has not indicated any disagreement with that conclusion. Although the Board regrets the additional delay, a remand is necessary to ensure due process and proper development regarding the Veteran’s claims. 1. Entitlement to a compensable rating for right ear hearing loss is remanded. 2. Entitlement to service connection for left ear hearing loss is remanded. First, as to the left ear hearing loss, the February 2014 VA medical opinion was deemed inadequate in the 2020 Board remand decision, as the examiner ultimately determined that the Veteran’s left ear hearing loss is less likely than not due to his military service because there was no significant audio threshold shift in the left ear from his enlistment examination in 1990 to the separation examination in 1993 and also indicated that the Veteran’s left ear hearing loss pre-existed service. However, as determined by the Board in the 2020 decision, that is legally incorrect, and the opinion was therefore deemed inadequate. Unfortunately, the resulting June 2020 opinion failed to include a sufficiently detailed or adequate rationale. Instead, the VA examiner ignored the Board’s clear instructions that it is legally incorrect that the Veteran’s left ear hearing loss pre-existed service and again solely relied on the Veteran having pre-existing hearing loss in the left ear with no significant shift in hearing noted during service as the rationale for a negative opinion. As such, the Board finds that the 2020 addendum opinion remains insufficient upon which to decide the claim and is tainted by the same flaws which rendered the 2014 VA examination report inadequate. Second, the claim for a compensable rating for the ear that is service-connected is intertwined with the claim for service connection for hearing loss in the other ear, because if service connection were granted, the analysis for the higher rating would be affected. 3. Entitlement to service connection for left and right foot disabilities, to include plantar fasciitis, is remanded. As to the feet, an adequate medical opinion regarding the etiology of the Veteran’s foot disabilities specifically considering the theory of aggravation of his pre-existing pes planus was requested, and the Board specifically stated that it is incorrect to state plantar fasciitis pre-existed service but that there was no aggravation and that at this juncture, plantar fasciitis appears to be a different medical condition then pes planus. “Plantar fasciitis” is defined as inflammation involving the plantar fascia especially in the area of its attachment to the calcaneus and causing pain under the heel in walking and running.” Hoag v. Brown, 4 Vet. App. 209, 211 (1993). Pes Planus is flat feet. Buckley v. West, 12 Vet. App. 76, 79 (1998). It may be the plantar fasciitis is a progression of the pes planus or it may be an entirely separate disability. If it is a progression of the pes planus noted upon entrance, then a medical opinion is needed to determine if the disability was aggravated beyond normal progression. If not, then the Board needs a medical opinion to determine if the plantar fasciitis is caused by or related to service. Unfortunately, the resulting February 2020 opinion failed to include a sufficiently detailed or adequate rationale. Instead, the VA examiner simply noted that the plantar fascial pain began 17 years after service and the separation foot examination as normal, and did not provide any discussion as to aggravation or causation with respect to pes planus, but rather stated this condition was less likely than not due to service as it was diagnosed at enlistment. As such, the Board finds that the 2020 addendum opinion remains insufficient upon which to decide the claim as it was merely conclusory and failed to answer the questions requested in the 2020 remand directives. Further, the Board notes that the fact the Veteran’s bilateral foot condition was normal at discharge does not preclude service connection being granted for a post-service condition if it is, in fact, related to service. As such, while the Board sincerely regrets the additional delay, the matters are again remanded to obtain adequate opinions and to ensure compliance with the Board’s previous remand directives. Stegall, 11 Vet. App. at 271; Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The matters are REMANDED for the following action: 1. Obtain VA medical treatment records from June 2020 to present and associate them with the claims file. 2. Forward the claims file and a copy of this REMAND to the 2020 VA audiology examiner, or another qualified examiner if that person is not available, to obtain an addendum opinion regarding the Veteran’s left ear hearing loss. Examination of the Veteran is not required, unless the VA examiner determines an in-person examination is necessary to provide the below-requested opinion. Following a complete review of the electronic claims file, the examiner must provide an opinion as to whether: The examiner is asked to opine whether the Veteran’s left ear hearing loss is at least as likely as not (50 percent or greater probability) related to service and to any acoustic trauma sustained therein. In providing the opinion regarding direct service connection, the examiner is instructed that although the finding of 35 dB at 6000 Hertz in the left ear at entry indicated some decreased hearing acuity, legal precedent instructs this is NOT to be considered a pre-existing condition, and the correct legal question is not whether his left ear hearing loss was aggravated by service, but whether it was incurred in service. An opinion based solely on aggravation and pre-existing hearing loss IS NOT ADEQUATE. The Veteran’s noise exposure in service was conceded. 3. Forward the claims file and a copy of this REMAND to the 2020 examiner, or another qualified examiner if that examiner is not available, to obtain an addendum opinion regarding the Veteran’s right foot and left foot disabilities. Examination of the Veteran is not required, unless the VA examiner determines an in-person examination is necessary to provide the below-requested opinion. The examiner is asked to determine whether: (a.) it is at least as likely as not (50 percent or greater probability) that any current disability of the feet is related to an in-service injury, event, or disease. The examiner is also asked to address the finding at entrance in January 1990 that the Veteran had mild asymptomatic pes planus and provide an opinion as to whether: (b.) it is at least as likely as not (50 percent or greater probability) that the Veteran’s pes planus was aggravated beyond natural progression during service due to an in-service injury, event, or disease, including progression to plantar fasciitis. The examiner is advised that aggravation of a pre-existing condition for legal purposes is defined as a worsening of the underlying disability versus a temporary flare-up of symptoms. The examiner should consider the Veteran’s lay statements, to include sworn testimony at the Board hearing that his feet began to hurt while wearing combat boots in service; the May 2011 diagnosis of plantar fasciitis; and the ongoing treatment and complaints in the VA medical records, including that the Veteran wears inserts and that the foot pain was also related to his job as a landscaper and wearing boots most days of the week. Rationale must be provided for opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, Associate 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.