Citation Nr: 21013761 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-28 902 DATE: March 10, 2021 ORDER Entitlement to service connection for bilateral pes cavus is granted. FINDINGS OF FACT The evidence shows that congenital pes cavus was aggravated by service beyond the natural progression of the disease. CONCLUSIONS OF LAW The criteria for entitlement to service connection for bilateral pes cavus are met. 38 U.S.C. § 1110, 1153; 38 C.F.R. § 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1971 to January 1973. This appeal comes to the Board of Veterans’ Appeals (Board) from rating decisions dated April 2014 and July 2015 issued by a Department of Veterans Affairs (VA) Regional Office (RO). In its April 2014 decision, the RO denied service connection for hearing loss. In its July 2015 decision, the RO denied service connection for a bilateral foot condition. The Veteran timely appealed both decisions. A Board video hearing was held in October 2020 with the undersigned Judge. The hearing transcript has been associated with the Veteran’s file. Service Connection 1. Entitlement to service connection for bilateral pes cavus The Veteran contends that his congenital bilateral pes cavus was aggravated by being assigned the wrong size boots in service. He competently and credibly reports that he did not have any foot pain prior to service but it began after being assigned the wrong size boots and wearing them throughout basic training. In a July 2015 notice of disagreement (NOD), the Veteran contended, “My cavus feet conditions were aggravated by military service.” He also contended that his “bilateral foot condition was…incurred in service or is the result thereof in part due to excessive standing and/or marching on rough or rugged terrain.” See Appellate Brief dated April 2019. In his October 2020 hearing, when asked when his feet became an issue, the Veteran replied, “Probably after I started wearing my boots…I would go home at night and my feet would hurt.” His wife noted that his foot was a size six, but he wore size seven and a half boots while in service. She wondered if that was part of the problem. The Veteran complained of his foot pain but did not report it while he was in service. The Veteran’s wife testified that he began receiving treatment for his feet about five years prior, circa 2015. He did self-care prior to this, which included taking his shoes off as quickly as possible and propping his feet up, sometimes with a pillow. He also slept with a pillow underneath his knees when he laid down. His wife noted that there were times when he would come home and one of his feet would drag. He clarified that he did not have pain in his feet prior to service. The pain started when he was in service when he started wearing boots that were too big for him. The Veteran noted that he was told by a physician that he was born with his condition because it was so severe. He was not given shoe inserts while he was in service. In a December 2020 private podiatry treatment record, the Veteran was diagnosed with congenital pes cavus and metatarsalgia. He had Dr. Comfort shoes with insoles, which improved his condition, but not completely. He had pain in his legs especially at night and his wife stated that he wound up sleeping with his legs pulled up. The podiatrist assessed: “Patient has severe high arched feet that need[] special supports and shoes to function without pain. Explained the foot structure and was probably exacerbated by wrong size shoes in military service.” The private podiatry treatment record shows the Veteran has a current diagnosis of congenital pes cavus. Congenital and developmental defects are not “diseases or injuries” in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. VA’s General Counsel has held, however, that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted “aggravation” of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. According to the VA General Counsel’s opinion, however, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90. The term “disease” is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. The term “defect” is defined as structural or inherent abnormalities or conditions that are more or less stationary in nature. As evidenced by the private podiatrist’s assessment that the congenital pes cavus was aggravated by wearing the wrong size shoes in service, the Board resolves the question of whether the pes cavus is a disease or defect in the Veteran’s favor to find that it is a disease. If the congenital disorder is a disease, service connection may be established if the evidence establishes that it was as likely as not aggravated by the veteran’s period of active service beyond its natural progression. Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009) A preexisting injury disease will be considered to have been aggravated by service, where there is an increase in disability during service, unless there is a specific finding that the increase is due to the natural progress of the disease. See 38 U.S.C. § 1153. However, an intermittent or temporary flare-up during service of a preexisting injury or disease does not constitute aggravation pursuant to 38 U.S.C. § 1153 unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Hence, the question of whether a preexisting defect or injury underwent an increase in severity “must be answered in the affirmative before the presumption of aggravation attaches.” Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Here, all of the evidence indicates that the Veteran had no pes cavus symptoms prior to service. His induction examination was silent as to foot pain and the lay evidence has been consistent on this point. The Board finds no reason to doubt the Veteran’s credibility. The Board finds that the evidence shows the Veteran’s congenital pes cavus worsened in service, because he experienced foot pain for the first time upon being assigned ill-fitting shoes that he wore throughout his duty. The pain continued from service to the present day. There is no specific finding that the increase is due to the natural progress of the disease. On the contrary, the only medical opinion of record states that the increase was due to the ill-fitting shoes. The private podiatrist opined that the Veteran’s congenital pes cavus was probably aggravated by wearing the wrong size shoe in service. The podiatrist provides a rationale to support this opinion, explaining that his severe high arched feet need special supports and shoes to function without pain. The record shows that the Veteran was not provided supports in service, and in fact was provided with ill-fitting shoes that had the opposite effect. The Board grants service connection for bilateral pes cavus. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contended that he suffered from bilateral hearing loss that was incurred in service or was the result thereof due to hazardous noise exposure and inadequate or unavailable hearing protection. See Appellate Brief dated April 2019. In a July 2013 lay statement, the Veteran’s wife wrote, When [he] took his physical to be drafted into the Army he failed his first hearing test was tested a second time and was told he passed…As time has passed, he started to turn up [the] TV and radio saying he couldn’t hear what they were saying. If a lot of people were together [he] would kind of be by himself because all the noise together bothered him. If asked something he might say, yes or no to things that didn’t need to be answered that way just so people didn’t know he didn’t hear them. It finally got so bad I wear ear plugs to bed so I could sleep over the TV. It just got worse and worse. He did complain about…not being able to hear good. Much better with aids, but he can’t hear very well without them. In a February 2015 NOD, the Veteran contended, “I was on the range without hearing protections and my left ear suffered hearing loss.” In a July 2015 Form 9, the Veteran contended, “I was in construction in the Engineering BN in Germany-we were always out [in the] field participating in training exercises. The heavy equipment was always loud and constant.” During his October 2020 hearing, it was noted that the Veteran’s duties while in service were in construction. The Veteran’s wife said that he dealt with hearing loss all of their married life. She noticed it when he was about 35 or 37 years old. This would be roughly in 1986 or 13 years after separation from service. He started to turn up the television. She kept saying when she came home that it was too loud and it just kept louder and louder. He could not even hear when someone talked to him anymore. It continued to get worse over time. The Veteran’s wife additionally noted that without his hearing aids, people might as well not even talk to him. He contended that his hearing loss had gotten worse since his last VA examination in 2014. VA treatment records show the Veteran underwent an audiological consult in November 2012 after being referred by primary care for a hearing evaluation. An audiogram showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 25 20 15 LEFT 35 30 25 15 20 The speech recognition was 96 in the right ear and 100 in the left. This does not show hearing loss for VA purposes under 38 C.F.R. § 3.385. The Veteran underwent a VA audiological examination in April 2014, which showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 20 20 15 LEFT 40 25 25 20 20 Speech audiometry revealed speech recognition ability of 100 percent in both the right and left ears. This audiogram shows hearing loss for VA purposes under 38 C.F.R. § 3.385 in the left ear, but not the right. The VA examiner determined that the Veteran had normal hearing in his right ear. He had conductive hearing loss in the left ear. The VA examiner concluded that the Veteran’s right and left ear hearing loss were less likely than not caused by or a result of an event in military service. The VA examiner opined, “Hearing WNL [(within normal limits)] with no threshold shifts noted in C-file audiometric exams from induction to separation.” He stated that there was no permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hz for the right ear, but there was for the left. This opinion is internally inconsistent as to the left ear hearing loss. The presence of a permanent threshold shift in the left ear was indicated, but then the rationale provided for a negative nexus opinion was “no threshold shifts.” In December 2020, the Veteran submitted a private audiological evaluation conducted in November 2020. The audiogram showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 25 30 20 20 LEFT 45 25 25 20 30 Speech audiometry revealed speech recognition ability of 100 percent in the left ear and 96 percent in the right ear. This examination establishes hearing loss for VA purposes in the right ear as well as the left. Thus, the elements of a current disability are established. The element of an in-service injury has also been established, as service connection is in effect for tinnitus based on exposure to loud noise during service. The only remaining element to establish is a nexus between the hazardous noise exposure in service and the current hearing loss. In this case, the only nexus opinion provided was during the April 2014 VA examination. However, the VA examiner’s opinion was internally inconsistent for the left ear, and he did not have the opportunity to address the lay evidence of hearing loss symptoms onset provided subsequent to 2014. Therefore, the Board finds that a remand is required in order to provide an opinion that considers the lay evidence of record and is supported by an adequate rationale. Accordingly, the matters are REMANDED for the following action: 1. Request a medical opinion addressing the Veteran’s bilateral hearing loss disability. In-person examination is not required unless deemed necessary by the examiner. For purposes of the bilateral hearing loss disability opinion, the examiner should accept that the Veteran was exposed to hazardous noise while in service, and that the Veteran has a current disability of bilateral hearing loss. Based upon a review of the entire claims file, the examiner is requested to provide an opinion as to the following questions: (a.) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s acoustic trauma in service caused his current bilateral hearing loss disability? Please address the lay evidence from the Veteran and his spouse regarding the onset of hearing loss. If the opinion is negative, please explain why the current hearing loss is less likely than not due to the hazardous noise in service. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bristor 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.