Citation Nr: 22015387 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 15-29 116 DATE: March 17, 2022 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a rating in excess of 10 percent prior to August 13, 2021, and in excess of 30 percent thereafter, for bilateral heel spurs is remanded. Entitlement to a rating in excess of 10 percent for left foot bunion is remanded. Entitlement to a compensable disability rating for right foot bunion is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1979 to August 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2012 by a Department of Veterans Affairs (VA) Regional Office. In February 2017, the Veteran testified at a Board hearing before a Veterans Law Judge. A transcript of the hearing is associated with the record. In December 2021, the Veteran was advised that such Veterans Law Judge is no longer employed by the Board and was provided with an opportunity to testify at another hearing; however, the Veteran declined the opportunity in a January 2022 letter. In an August 2018 decision, the Board denied the Veteran's increased rating claims for bilateral heel spurs and bilateral bunions. Thereafter, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), which issued a Memorandum Decision in April 2020, vacating the Board's decision and remanding the matters. In April 2021, the Board remanded the claims for additional development along with claims for service connection for bilateral hearing loss and service connection for a right knee disability. In a September 2021 rating decision, the Agency of Original Jurisdiction (AOJ) awarded service connection for a right knee disability. As such constitutes a full grant of benefits sought, the issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Additionally, the AOJ awarded a rating of 30 percent, effective August 25, 2021, for the Veteran's bilateral heel spurs with bilateral pes planus and plantar fasciitis. However, as the Veteran is presumed to be seeking the maximum benefit for such disability, the claim for a higher rating remains in appellate status. A.B. v. Brown, 6 Vet. App. 35, 38 (1993). The remaining issues now return for further appellate review. 1. Entitlement to service connection for hearing loss. As noted in the April 2021 Board remand, the Veteran underwent a VA examination in October 2018, at which time he was diagnosed with bilateral hearing loss. The examiner opined that the Veteran's hearing loss was less likely than not related to his active duty service as his separation audiogram showed normal hearing and no significant threshold shift from the entrance examination. However, the examiner failed to provide an adequate rationale for his opinion, and thus, such opinion was insufficient. Pursuant to the April 2021 remand directives, the Veteran was afforded an additional VA examination in September 2021. The examiner reported that such findings were not valid for rating purposes. Here, it was noted that pure tone thresholds, speech reception thresholds, and work discrimination scores were not recorded due to inconsistent, unreliable responses, despite re-instruction and verification of equipment function. Speech reception thresholds and pure tone averages were in poor agreement, suggesting that volunteered pure tone thresholds are most likely better than indicated. Therefore, the examination was considered not valid for VA rating purposes and as no condition of hearing loss was diagnosed, the examiner was unable to provide an opinion. However, the Board notes that the Veteran has been previously diagnosed with bilateral hearing loss. Additionally, in July 2021, the Veteran submitted audiological examination reports from routing testing at his employment with the [REDACTED] Road and Bridges Department, which indicate some hearing loss in January 2020 and February 2021. However, the September 2021 VA examiner did not consider the previous findings of bilateral hearing loss. Thus, as such examination is inadequate, the Board finds a remand necessary in order to afford the Veteran a VA examination to determine the nature an etiology of his bilateral hearing loss. 2. Entitlement to a rating in excess of 10 percent for bilateral heel spurs. 3. Entitlement to a rating in excess of 10 percent for left foot bunion. 4. Entitlement to a compensable rating for right foot bunion. In April 2021, the Board remanded the Veteran's claims for increased ratings for his service-connected disabilities in order to afford him a new VA examination. Accordingly, the Veteran was afforded VA examinations in August 2021 and September 2021. However, while the Board regrets the additional delay, a remand is necessary in order to clarify the inconsistencies in the VA examination reports. In the August 2021 VA examination report, the examiner noted diagnoses of bilateral pes planus, plantar fasciitis, hammer toes, hallux valgus, acquired pes cavus (claw foot) and arthritis of the right foot. Notably, the examiner determined that the Veteran's bilateral foot conditions are all manifestations of his service-connected conditions. At the time of the examination, the Veteran reported flare-ups of both the left and right feet. In regard to his pes planus, the examiner reported that the Veteran has pain of his feet and that he has tried arch supports, but remains symptomatic. Additionally, the examiner noted that the Veteran only has hammer toe of the second toe, has mild to moderate symptoms related to his hallux valgus condition, and does not have any symptoms related to his claw foot. Shortly thereafter, the Veteran underwent an additional VA examination in September 2021. The examination report indicates diagnoses of bilateral pes planus, hallux valgus, hallux rigidus and claw foot. The examiner noted that the Veteran's foot conditions are manifestations of his service-connected foot conditions. The Veteran denied flare-ups at the time of the examination. In regard to his pes planus, the examiner noted that the Veteran used arch supports, which provided complete relief of symptoms. Additionally, it was reported that while the Veteran does not have any symptoms related to his hallux valgus, his hallux rigidus resulted in mild to moderate severity of both feet. In regard to his claw foot, such resulted in all toes tending to dorsiflexion and definite tenderness under metatarsal heads. Here, the examiner reported that the Veteran has significant deformity of the feet from his claw foot making it difficult to straighten out his toes and he experiences pain while standing due to the pes planus, hallux valgus, and calcaneal spurs. Finally, the Board notes that the September 2021 VA examiner relied on a July 2009 X-ray of the Veteran's foot in diagnosing his current foot disabilities. However, the evidence indicates that the Veteran underwent an X-ray in concurrent with his August 2021 VA examination. Here, the Board finds a remand is necessary in order to afford the Veteran a new examination to determine the current nature and severity of his bilateral foot disabilities. In this regard, the Board notes that the August 2021 and September 2021 VA examinations, while performed within a short period of time, yielded different results, and thus, are inconsistent. Moreover, the September 2021 VA examiner did not rely on the most recent X-ray of the Veteran's feet in reporting the current for disabilities. Thus, a remand is necessary to rectify the inconsistencies in the most recent VA examinations. The matters are REMANDED for the following actions: 1. Afford the Veteran an appropriate VA examination so as to determine the nature and etiology of his claimed bilateral hearing loss. The record to include a copy of this Remand must be made available to the examiner and all indicated tests should be conducted. Thereafter, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's bilateral hearing loss is related to his military service, to include is acknowledged in-service noise exposure. In offering such opinion, the examiner must consider the October 2018 VA examination report indicating a current diagnosis of bilateral hearing loss and the routine audiological examinations the Veteran underwent as part of his employment. The examiner is also advised that the absence of documented evidence of symptoms referable to bilateral hearing loss in the Veteran's service treatment records may not be the sole basis of a negative opinion. A rationale for any opinion offered should be provided. 2. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected bilateral heel spurs and bunions. The record, to include a complete copy of this Remand, must be made available to the examiner. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. (A) The examiner should describe the nature and severity of all manifestations of the Veteran's bilateral heel spurs and bunions. (B) If a foot disorder other than heel spurs and bunions is diagnosed, the examiner should offer an opinion as to whether such is part and parcel of the Veteran's bilateral heel spurs and bunions, or is otherwise caused or aggravated by such disability. If so, the nature and severity of all manifestations of such disorders should also be described. In offering an opinion, the examiner should consider the diagnoses of pes planus, plantar fasciitis, hammer toes, hallux valgus, acquired pes cavus (claw foot), arthritis of the right foot, and hallux rigidus found at the August 2021 and September 2021 VA examinations. If the examiner finds that the Veteran does not have a diagnosis of a disability listed herein, he or she should rectify such findings with the prior findings. (C) If the Veteran endorses experiencing flare-ups of his heel spurs (and any foot disorder determined to be related to such disability), the examiner must obtain information regarding the frequency, duration, characteristics, and severity, and the resulting functional loss related to such flare-ups. (D) The examiner should also comment upon the functional impairment resulting from the Veteran's bilateral heel spurs and bunions (and any foot disorder determined to be related to such disability). A rationale for any opinion offered should be provided. A. Odya-Weis Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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.