Citation Nr: 21014109 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 09-24 845 DATE: March 11, 2021 REMANDED Entitlement to service connection for bilateral foot disability is remanded. Entitlement to service connection for left ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1985 to January 1988. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Board remanded the appeal for additional evidentiary development. The Board notes that both service treatment records and current medical records show treatment for various foot problems. Given this, the Board has recharacterized the claim more broadly. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he/she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). See also, Brokowsky v. Shinseki, 23 Vet. App. 79, 84 (2009) (generally, the scope of a disability claim includes any disability that may reasonably be encompassed by a veteran's description of the claim, reported symptoms, and the other evidence of record). In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for bilateral foot disability. 2. Entitlement to service connection for left ear hearing loss. Issues 1 & 2: A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall, supra. Initially, the Board notes that the Veteran’s attorney has requested a copy of the curriculum vitae of the March 2019/February 2020 VA examiners. See Third Party Correspondence (March 2020). Once a veteran has raised the issue of an examiner’s competency to offer a medical opinion, he or she has the right, absent unusual circumstances, to the curriculum vitae and other information about the qualifications of the examiner. Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. 2019). On remand, the Veteran and his representative should be provided a copy of the March 2019/February 2020 VA examiners’ curriculum vitae. Issue 1: The Veteran contends that he acquired pes planus in service. See NOD (August 2014). He claims that his entrance physical does not show pes planus, and that such was found during service in February 1988, and that its cause is believed to be his walking, running, carrying heavy equipment and persons while wearing inadequate footwear in service. Id. He stated that he experiences arthritis, plantar fasciitis and pain from bilateral calcaneal heel spurs that resulted from his flat feet. Id. The Board finds that the Veteran has current bilateral foot diagnoses, including bilateral pes planus and plantar fasciitis. The Veteran’s service treatment records (STRs) show right ankle and foot pain in May 1986 after he twisted his ankle playing football, which resulted in a fracture of the base of the fifth metatarsal bone. See STR-Medical (December 2006). The Veteran is in receipt of service connection for right 5th metatarsal fracture. In its May 2018 remand, the Board requested a foot disability examination. See BVA Decision (May 2018). Although a VA Foot conditions examination was conducted in March 2019, showing diagnoses for pes planus and plantar fasciitis, the associated medical opinion is inadequate and does not substantially compliance with the Board’s prior remand directives. See Dyment v. West, 13 Vet. App. 141 (1999). The March 2019 VA medical opinion reflects that the conditions were less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The rationale was predicated on the absence of pes planus on the Veteran’s entrance examination, a February 1988 service treatment record showing pes planus, asymptomatic, current findings for asymptomatic pes planus, and current findings for plantar fasciitis but without that being shown in service. The medical opinion does not support the conclusions reached with any analysis for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21Vet. App.102, 124-25. Moreover, the conclusion notes supporting data points, but totally lacks a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22Vet. App.295, 301 (2008). In this regard, there is no explanation why the absence of symptomatic pes planus or a diagnosis of plantar fasciitis in service is dispositive and the opinion does not reflect any consideration of the Veteran’s statements as to symptoms’ onset and progression to include whether they support a medical conclusion that it is as likely as not that his foot conditions had their onset in service or are otherwise related to service. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner’s failure to consider [the Veteran’s] testimony when formulating her opinion renders that opinion inadequate.”). Generally, a claimant is competent to attest to observable symptomatology and, if rejected or found unpersuasive in view of other facts, this must be explained. Here, the March 2019 VA examination does not acknowledge or reflect any actual consideration of the lay statements. Regarding his bilateral foot disability, the Veteran reported walking, running, carrying heavy equipment and persons, while wearing inadequate footwear in service, which went unaddressed in the written opinion. Along the same lines, the opinion does not identify or explain the relevance or significance of any history, clinical findings, etc., relied upon in reaching the conclusion, including a February 1988 enlistment examination showing mild symptomatic pes planus, private treatment records with suggestions of arthritis and heel spur on the right, and reports of bilateral foot pain and pain in the arches of the feet. See Medical Treatment Record - Non-Government Facility (May 2015); Medical Treatment Record-Non-Government Facility (September 2018). It does not reflect consideration of reports of pain in bilateral heels and arches for many years annotated in the available private treatment records. To ensure VA has met its duty to assist, remand for another VA medical opinion is necessary to decide the appeal. Issue 2: The Veteran contends that he experienced loud noises on active duty but not in civilian life, and that he has had problems with his hearing during active duty and continuously since. See VA 21-4138 Statement In Support of Claim (March 2014). He also stated that he had perforated left ear drum in service, which his service treatment records document. See Correspondence (November 2013). In its May 2018 remand, the Board found that the February 2009 and March 2016 VA examinations were inadequate and remanded the matter for a new VA examination. Although a VA audio examination was conducted in March 2019 with a March 2020 VA addendum following the May 2018 Board remand, the Board finds there has not been substantial compliance with the Board’s prior remand directives. See Stegall, supra. As previously noted, service treatment records (STRs) reflect that, prior to service entry, in January 1985, audiometric findings for the left ear show the following findings in decibels at the 500, 1000, 2000, 3000, and 4000 Hertz frequencies: 500 1000 2000 3000 4000 15 10 5 0 10 See STR (December 2008). The Veteran’s April 1986 audiogram for the left ear shows the following findings in decibels at the 500, 1000, 2000, 3000, and 4000 Hertz frequencies: 500 1000 2000 3000 4000 5 5 0 5 15 The Veteran’s STRs show complaints of left ear hearing loss noted as “almost total loss of hearing” and vertigo, in March 1987, which was assessed as left ear infection. See STR (December 2008). In February 1988, a month after the Veteran separated from service, his audiogram reflects the following findings in decibels for the left ear at the 500, 1000, 2000, 3000, and 4000 Hertz frequencies: 500 1000 2000 3000 4000 0 0 0 5 10 See STR-Medical (December 2006). A hearing loss disability of the left ear as defined by VA at 38 C.F.R. § 3.385 is not shown at service separation. However, as the Board noted in its May 2018 remand, in-service hearing loss is not required to establish entitlement to service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In its May 2018 remand, the Board remanded for a medical opinion addressing the etiology of the Veteran’s left ear hearing loss disability. Since there has not been substantial compliance with the Board’s remand instructions, remand is again necessary. See Stegall, supra. The Board finds that the November 2020 VA medical addendum opinion does not contain clear conclusions with supporting data, and a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). More specifically, the opinion is inadequate for the following reasons. First, the medical opinion is predicated on an inaccurate factual premise that “objective” evidence – audiograms - is required to establish that the Veteran’s current left ear hearing loss is due to in-service noise exposure. See Reonal, supra. Significantly, the Board cited to Hensley, supra, and noted in its May 2018 remand that in-service hearing loss is not required to establish entitlement to service connection for hearing loss. Second, the February 2020 VA addendum opinion is inadequate to decide the appeal, because it is predicated on the absence of “objective” data or information without any consideration of the Veteran’s reports of difficulty hearing during active duty and continuously since. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board specifically requested that consideration is given to the Veteran’s lay reports of his symptoms and history pertaining to left ear hearing loss during and after service. See McKinney, Stegall, both supra. Here, the February 2020 addendum opinion reflects no consideration of the Veteran’s competent lay reports of symptoms. The opinion does not identify or explain the relevance or significance of any history, clinical findings, etc., relied upon in reaching the conclusion, including STRs showing almost total loss of hearing in the left ear, which was assessed as left ear infection. See STR – Medical (December 2008). It does not reflect consideration of reports of continuing of symptoms. Third, the opinion obliquely references research studies and indicates these studies show that noise exposure has an immediate effect on hearing and does not have delayed onset. It then provides three citations to include a 2005 Institute of Medicine (IOM) study, entitled “Noise and Military Service.” The opinion is inadequate as it relied heavily on the IOM report without any specific discussion of the IOM findings vis-à-vis the facts related to this Veteran. See Bailey v. O’Rourke, 30 Vet. App. 54, 60 (stating that a medical rationale based solely on general medical literature without discussing the specific facts pertaining to the veteran renders the opinion inadequate). Also, the opinion does not include any discussion or mention of qualifying or contradictory aspects within the research or literature. See generally, McCray v. Wilkie, 31 Vet. App. 243 (2019). Given the above, remand is necessary for another medical opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Where VA provides an examination or obtains an opinion, it must be adequate.). The matters are REMANDED for the following action: 1. Provide the Veteran information regarding the qualifications of the March 2019/February 2020 VA examiners, to include a curriculum vitae or other similar material and include copies of the information provided to the Veteran in the claims file. It is noted the Board does not possess this information, which is why a February 2021 Board letter notified the Veteran that the Board could not complete the request. 2. Obtain a medical opinion from an appropriate clinician to determine the nature and etiology of his foot disabilities, to include bilateral pes planus and plantar fasciitis. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. (a) Detail the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that his reported symptoms in service and thereafter represented the onset of a current foot disability, this should be noted. (b) Opine on whether any current foot disability, to include bilateral pes planus and/or plantar fasciitis, at least as likely as not (i) had its onset in service or (ii) is related to an in-service injury, event, or disease to include carrying heavy equipment and persons, while wearing inadequate footwear in service. Explain. (c) To the extent that any reported in-service foot condition resolved, the clinician should explain the basis for this conclusion. (d) To the extent that another etiology is the more likely cause of any the Veteran’s foot disabilities, identify that etiology and fully explain the basis for that conclusion. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). NOTE: A negative medical opinion may not be predicated solely on the absence of documented complaints or findings in service. 3. Obtain a medical opinion from an otolaryngologist as to the nature and etiology of the Veteran’s left ear hearing loss disability. The claims file along with a copy of this REMAND should be reviewed. Consideration (i) the documented history; (ii) the lay contentions (e.g. hearing loss was caused by in-service noise exposure); and (iii) relevant medical evidence of record, including the Veteran’s reports of loss of hearing in the left ear in March 1987 and June 1987 as well as a diagnosis of left ear infection in June 1987. (a) Detail the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that his reported symptoms in service and thereafter represented the onset of his left ear hearing loss, this should be noted. (b) Opine on whether the Veteran’s left ear hearing loss disability at least as likely as not had its onset in service; or manifested within one year after discharge from service; or was noted during service with continuity of the same symptomatology since service; or any delayed onset hearing (hearing loss not shown in service or within one year after discharge) is otherwise etiologically related to in-service noise exposure or left ear infection. (c) To the extent an etiology other than noise exposure during active duty from January 1985 to January 1988 is more likely the cause of the Veteran’s left ear hearing loss disability, identify that etiology and fully explain the basis for that conclusion. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). With respect to any IOM report considered and relied upon in formatting an opinion, discuss any qualifying or contradictory aspects and why, if so, the opinion remains negative given the qualifying or contradictory aspects of the research/literature. NOTE (1): A negative opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): A negative medical opinion may not be predicated solely on general medical literature without discussing the specific facts pertaining to the Veteran. 4. Ensure that the VA medical opinions obtained includes a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. P. 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.