Citation Nr: 1736666	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  13-30 743	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for hammer toes with hallux valgus of the bilateral feet (hereinafter a "bilateral foot disability").


REPRESENTATION

Veteran represented by:	Tennessee Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

Journet Shaw, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the U.S. Army from December 1970 to September 1972.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions in August 2012 and July 2015 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied service connection for bilateral hearing loss; and denied reopening a claim for service connection for hammer toes with hallux valgus of the bilateral feet, respectively.  

The Board notes that the RO, in a June 2016 statement of the case, found that regarding the Veteran's service connection claim for a bilateral foot disability, new and material evidence had been received in February 2015 prior to the expiration of the appeal period associated with the July 2014 rating decision.  See 38 C.F.R. § 3.156(b) (2016).  Accordingly, the July 2014 rating decision, which reopened the Veteran's service connection claim and denied the claim on the merits, had not become final; thus, the issue has been characterized as reflected on the title page.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(b) (West 2014).  

In June 2015 and September 2015, the Board remanded the issue of entitlement to service connection for bilateral hearing loss for additional development.  As discussed below, there has not been substantial compliance with the remand instructions, so the matter must be remanded.  See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

The Veteran contends that his bilateral hearing loss developed as a result of his military noise exposure.  While the Veteran generally accepts that his April 1972 separation examination does not show evidence of hearing loss or demonstrate a threshold shift from enlistment to separation, he disagrees with the finding that his hearing was normal upon his discharge.  Rather, he explained that following his April 1972 separation examination, but prior to his discharge from the military in September 1972, he was exposed to high levels of noise while attending a welding class at a Community College.  The Veteran described how he was sent to Fort Carson and enrolled in a welding class by the military, that he lived in the barracks, and that he was transported to and from the class by the military.  While attending the class for 8 hours a day from April 1972 to June 1972, the Veteran said he was subjected to high levels of noise from the grinding and hammering of metal.  He also said that he did not remember anyone discussing or offering any hearing protection.  Finally, the Veteran said the he did not receive another hearing test when he was discharged in September 1972, but if he had, it would have shown a change in his hearing.  

In its June 2015 Board remand, the Board instructed that the examiner provide an opinion which considered the Veteran's contentions.  However, in a June 2015 VA opinion, the examiner, in opining that the Veteran's current bilateral hearing loss was less likely than not caused by or a result of military noise exposure, did not comply with that instruction.  In that regard, the examiner did not discuss the Veteran's report that he had additional exposure to high levels of noise without hearing protection after his April 1972 separation examination, which showed normal hearing.  Furthermore, the examiner failed to address the Veteran's contention that he did not have any significant post-service occupational noise exposure.  Instead, the VA examiner relied solely on the Veteran's normal hearing tests, the lack of a threshold shift from enlistment to separation, and discounted the Veteran's reports regarding the extent of his post-service noise exposure.  Finally, it appears that the June 2015 VA examiner did not address, as instructed by the Board, that the RO had already established that the Veteran experienced acoustic trauma during military service when it service-connected tinnitus.  For these reasons, the Board finds that the June 2015 VA opinion is inadequate and did not comply with the June 2015 Board remand directives.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268 (1998).  On remand, the AOJ should obtain an opinion from another VA examiner to determine the etiology of the Veteran's bilateral hearing loss and to take into account all of the Veteran's statements and contentions.  

With regard to the Veteran's service connection claim for a bilateral foot disability, the Board finds that for several reasons, the July 2014 VA examination is inadequate, and another VA examination is warranted.  First, the July 2014 VA examiner documented in the report that x-rays of the Veteran's feet had been ordered, but not obtained.  As a result, the Board cannot conclude that the Veteran was given an adequate examination.  Second, in opining that the Veteran's bilateral foot disability was less likely than not aggravated beyond its natural progression, the July 2014 VA examiner did not use the correct legal standard.  In this case, the evidence shows that the Veteran entered service with a mild callus of the left foot, which was noted on his enlistment examination.  Under these circumstances, the correct legal standard to apply is whether the Veteran's preexisting disability underwent an increase in severity during active service, and if so, whether there is clear and unmistakable evidence that any such progress was due to the natural progression of the disease.  Because this opinion does not apply the correct legal standard, a remand to obtain a new VA opinion is required.  Third, the July 2014 VA examiner did not address the Veteran's contentions.  Basically, the Veteran asserts that his feet did worsen during service, because of the running, marching, and physical training he performed during basic and Advanced Individual Training (AIT).  Furthermore, upon entering service, he also said that he was given footwear that was a size smaller (size 11 when he had always worn size 12).  Finally, the Veteran said a doctor told him at his separation examination that the Army should have repaired his condition while he was in service.  Accordingly, for the reasons detailed above, a remand to afford the Veteran another VA examination and opinion is required.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Accordingly, the case is REMANDED for the following actions:

1.  Obtain all of the Veteran's outstanding treatment records for his bilateral hearing loss and hammer toes with hallux valgus of the bilateral feet that are not currently of record.  

2.  After completing the above, to the extent possible, obtain a VA addendum opinion from a different examiner than the June 2015 VA examiner.  Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination.  Provide the claims file, including a copy of this REMAND, to the examiner for review.

After reviewing the claims file, the examiner should respond to the following:

Is it at least as likely as not (50 percent probability or greater) that the Veteran's current bilateral hearing loss is etiologically related to conceded hazardous noise exposure during service?

In providing the above opinion, the examiner must discuss the Veteran's contentions that following his April 1972 separation examination, but prior to his discharge, he was exposed to additional high levels of noise exposure while attending a welding class.  The examiner must also discuss the Veteran's reports regarding the extent of his post-service occupational noise exposure.  

A complete rationale for any opinion expressed must be provided.  

3.  Schedule the Veteran for a VA examination for his currently diagnosed bilateral foot disability by an appropriately qualified examiner.  Provide the examiner with the claims file, including a copy of this REMAND, for review.  

After a review of the claims file, the examiner should respond to the following:

a.  Is it at least as likely as not (50 percent probability or greater) that the Veteran's preexisting left foot disability underwent an increase in severity during active service?

b.  If (a) is answered yes, offer an opinion as to whether there is clear and unmistakable evidence (obvious, manifest, undebatable) that any such increase was due to the natural progression of the condition.  If answered in the affirmative, the examiner must provide a discussion of any such evidence.

In providing the above opinions, the examiner must discuss the Veteran's contentions that his feet did worsen during service due to his wearing the wrong size footwear and engaging in physical activity during basic and Advanced Individual Training.  The examiner must also discuss the Veteran's report that he was told by a doctor at separation that his feet should have been repaired by the Army.  

A complete rationale for any opinion expressed must be provided.  

4.  After ensuring compliance with the above, readjudicate the claims.  If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided a supplemental statement of the case.  Then, return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
LESLEY A. REIN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).



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