KNEE IMPAIRMENT OF

COREY BOSELY · 2024 · Case ID: 24033360

MIXED

Summary

The veteran served from January 1967 to October 1975 and again from May 1980 to January 1993. This case involves appeals related to the Veteran's bilateral knee conditions, specifically subpatellar chondromalacia with degenerative joint disease. The Veteran sought an initial compensable rating prior to November 20, 2008, and an increased rating thereafter. The Board found that a 10 percent rating was warranted for each knee prior to November 20, 2008, based on painful motion, but denied higher initial ratings. For the period after November 20, 2008, the Board denied evaluations in excess of 10 percent, finding that the evidence did not support ratings for ankylosis, instability, or other significant functional limitations. The Board noted that the Veteran failed to attend scheduled VA examinations in May 2024, and while acknowledging deficiencies in prior examinations, determined that the Veteran's lack of cooperation precluded further development. The case also includes three remanded issues: service connection for high arches of the bilateral feet, residuals of hepatitis B, and service connection for bilateral hearing loss. For the foot and hepatitis B claims, remand is ordered for new VA examinations to address nexus and residuals, despite the Veteran's failure to attend prior appointments. The hearing loss claim is remanded for VA audiological records to be obtained and reviewed, with a potential nexus opinion if a disability is found.

Rationale

Initial rating of 10 percent granted for painful motion.; Denied higher rating due to lack of ankylosis, instability, or significant limitation of motion.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

19-07 236A

Full Decision Text

Citation Nr: 24033360
Decision Date: 11/22/24 Archive Date: 11/22/24

DOCKET NO. 19-07 236A
DATE: November 22, 2024

ORDER

An initial evaluation of 10 percent, but not in excess thereof, prior to November 20, 2008, for left knee subpatellar chondromalacia with degenerative joint disease is granted.

An initial evaluation of 10 percent, but not in excess thereof, prior to November 20, 2008, for right knee subpatellar chondromalacia with degenerative joint disease is granted.

An evaluation in excess of 10 percent from November 20, 2008 for left knee subpatellar chondromalacia with degenerative joint disease is denied.

An evaluation in excess of 10 percent from November 20, 2008 for right knee subpatellar chondromalacia with degenerative joint disease is denied.

REMANDED

Entitlement to service connection for high arches of the bilateral feet.

Entitlement to service connection for residuals of hepatitis B.

Service connection for bilateral hearing loss.

FINDINGS OF FACT

1. Prior to November 20, 2008, the Veteran's left knee subpatellar chondromalacia and right knee subpatellar chondromalacia with degenerative joint disease were productive of painful motion but not ankylosis, recurrent subluxation or lateral instability, dislocation or symptomatic removal of the semilunar cartilage, tibial or fibular impairment, genu recurvatum, extension limited to 15 degrees or more, flexion limited to 30 degrees or less, or the functional equivalent thereof.

2. From November 20, 2008, the Veteran's left knee subpatellar chondromalacia with degenerative joint disease and right knee subpatellar chondromalacia with degenerative joint disease were productive of painful motion, but not ankylosis, recurrent subluxation or lateral instability, recurrent subluxation or instability or patellar instability, dislocation or symptomatic removal of the semilunar cartilage, tibial or fibular impairment, genu recurvatum, extension limited to 15 degrees or more, flexion limited to 30 degrees or less, or the functional equivalent thereof.

CONCLUSIONS OF LAW

1. The criteria for an initial evaluation of 10 percent, but not in excess thereof, from February 1, 1993 to November 19, 2008 for left knee subpatellar chondromalacia with degenerative joint disease are met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2023).

2. The criteria for an initial evaluation of 10 percent, but not in excess thereof, from February 1, 1993 to November 19, 2008 for right knee subpatellar chondromalacia with degenerative joint disease are met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2023).

3. The criteria for an evaluation in excess of 10 percent from November 20, 2008, for left knee subpatellar chondromalacia with degenerative joint disease are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2023).

4. The criteria for an evaluation in excess of 10 percent from November 20, 2008, for right knee subpatellar chondromalacia with degenerative joint disease are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2023).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1967 to October 1975 and from May 1980 to January 1993, with service in the Reserve Officers' Training Corps (ROTC) in the interim.

This appeal is before the Board of Veterans' Appeals (Board) from an August 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.

In his December 1993 substantive appeal, the Veteran requested a hearing before the Board. Before such a hearing could be scheduled, he withdrew his hearing request via a March 1994 letter from his representative. The agency of original jurisdiction (AOJ) construed ambiguous language in this letter as
CLUSIONS

The Veteran served on active duty from January 1967 to October 1975 and from May 1980 to January 1993, with service in the Reserve Officers' Training Corps (ROTC) in the interim.

This appeal is before the Board of Veterans' Appeals (Board) from an August 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.

In September 2022, the Veteran testified during a Board hearing before the undersigned Acting Veterans Law Judge via videoconference. A transcript is included in the claims file. At this hearing, which was initiated in relation to appeals no longer before the Board, the Veteran testified that he never intended to withdraw his appeal in March 1994, and gave testimony as to the issues of the August 1993 rating decision.

In March 2023, the Board remanded the issues on appeal with instruction to readjudicate the appeals and issue a supplemental statement of the case. A supplemental statement of the case was issued in October 2023. In May 2024, the Board again remanded with instruction to provide VA examinations for the issues on appeal and to obtain medical opinions for the service connection issues. The Veteran was scheduled for VA examinations in May 2024, but he failed to report to each of them. While the record does not include copies of notification letters sent to the Veteran, he was notified that he had failed to report to scheduled examinations by the June 2024 supplemental statement of the case. Moreover, in a July 2024 informal hearing presentation, his representative did not argue that he had missed the examinations for good cause or that the examinations should be rescheduled via remand. Rather, the representative argued that failure to report to an examination does not require denial of initial claims of service connection or downstream appeals of initial ratings under 38 C.F.R. § 3.655(b), and that the appeals should be adjudicated based on the record evidence. As such, with respect to the issues decided in this decision, the Board is therefore satisfied that the AOJ has made sufficient attempts to comply with the instructions in its remands of March 2023 and May 2024. See Stegall v. West, 11 Vet. App. 268 (1998).

1. Entitlement to an initial compensable evaluation prior to November 20, 2008 for left knee subpatellar chondromalacia with degenerative joint disease

2. Entitlement to an initial compensable evaluation prior to November 20, 2008 for right knee subpatellar chondromalacia with degenerative joint disease

3. Entitlement to an evaluation in excess of 10 percent from November 20, 2008 for left knee subpatellar chondromalacia with degenerative joint disease

4. Entitlement to an evaluation in excess of 10 percent from November 20, 2008 for right knee subpatellar chondromalacia with degenerative joint disease

The Veteran claims increased ratings for his bilateral knee disabilities.

The Veteran is seeking a higher initial rating for his right and left knee disabilities. The appeal period now before the Board begins February 1, 1993, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). Each disability was assigned a noncompensable (0 percent) prior to November 20, 2008. A May 2009 rating decision increased the rating to 10 percent effective from that date.

A. Applicable Law

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10.

"Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (199
for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the claimants themselves when a flare-up or repeated use over time is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The provisions of 38 C.F.R. §§ 4.40 and 4.45 permit consideration of ankylosis ratings if a claimant's functional loss is the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021).

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 76,453 (Nov. 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the claimant will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.
period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Prior to November 20, 2008, the Veteran's knee disabilities were rated as noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under this code, degenerative arthritis is rated on the basis of limitation of motion of the specific joint involved. When limitation of motion is noncompensable, a 10 percent rating is for application for each major joint. In the absence of limitation of motion, a maximum schedular 20 percent rating is assigned for degenerative arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes.

Effective November 20, 2008, the Veteran is in receipt of two 10 percent ratings for limitation of flexion under 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under this code, flexion of the leg is rated noncompensable when limited to 60 degrees, 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees.

Alternative and additional Diagnostic Codes for the knee are available under 38 C.F.R. § 4.71a, as follows:

Under 38 C.F.R. § 4.71a, Diagnostic Code 5256, ankylosis of the knee with a favorable angle in full extension, or in slight flexion between 0 and 10 degrees, is rated at 30 percent; ankylosis in flexion between 10 and 20 degrees is rated at 40 percent; ankylosis in flexion between 20 and 45 degrees is rated at 50 percent; and extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated at 60 percent.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, recurrent subluxation or lateral instability is rated at 10 percent for slight instability, 20 percent for moderate instability, and 30 percent for severe instability. As of February 7, 2021, under the amended criteria, a 10 percent rating is warranted for a diagnosed condition with recurrent instability that does not require a prescription for a brace, cane, or walker; or for a sprain, incomplete ligament tear, or complete ligament tear causing persistent instability without a prescription for an assistive device or bracing for ambulation. A 20 percent rating is warranted for a diagnosed condition with recurrent instability after surgical repair that requires a prescription for a brace, cane, or walker; or for a sprain, incomplete ligament tear, or complete ligament tear causing persistent instability with a prescription for an assistive device or bracing for ambulation. A 30 percent rating is warranted for a diagnosed condition with recurrent instability after surgical repair that requires a prescription for a brace and either a cane or a walker; or for an unrepaired or failed repair of a complete ligament tear causing persistent instability with a prescription for both an assistive device and bracing for ambulation.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, dislocation of semilunar cartilage with frequent episodes of "locking" pain and effusion into the joint is rated at 20 percent.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, symptomatic removal of the semilunar cartilage is rated at 10 percent.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, extension of the leg is rated noncompensable when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when
both an assistive device and bracing for ambulation.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, dislocation of semilunar cartilage with frequent episodes of "locking" pain and effusion into the joint is rated at 20 percent.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, symptomatic removal of the semilunar cartilage is rated at 10 percent.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, extension of the leg is rated noncompensable when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5262, malunion of the tibia and fibula is rated at 10 percent with slight disability, 20 percent with moderate disability, and 30 percent with marked disability. Nonunion of the tibia and fibula, with loose motion and requiring a brace, is rated at 40 percent. As of February 7, 2021, under the amended criteria, malunion of the tibia and fibula is to be evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. In addition, the code provides criteria for medial tibial stress syndrome (MTSS) or shin splints. Treatment for less than 12 consecutive months warrants a 0 percent rating. A disability requiring treatment for no less than 12 consecutive months and unresponsive to either shoe orthotics or other conservative treatment warrants a 10 percent rating. A disability requiring treatment for no less than 12 consecutive months unresponsive to surgery and either shoe orthotics or other conservative treatment warrants a 20 percent rating in one lower extremity and a 30 percent rating for both lower extremities.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5263, acquired traumatic genu recurvatum, with objectively demonstrated weakness and insecurity in weight-bearing is rated at 10 percent.

B. Discussion

In this case, the Board finds that an initial rating of 10 percent is warranted, but not higher.

As discussed, the Veteran was scheduled for another VA examination in May 2024. He failed to report. He has not shown good cause for his failure to report, nor has he requested that the examination be rescheduled. In a July 2024 informal hearing presentation, his representative acknowledged his failure to report but did not request the Board remand for a rescheduled examination. As this is an original claim, pursuant to 38 C.F.R. § 3.655(b), the Board will decide the issue based on the evidence of record.

From February 1, 1993, to November 20, 2008, the Board finds that a 10 percent rating is warranted for each of the Veteran's knees.

The Veteran underwent a VA examination in March 1993. He reported pain with kneeling and aching with immobilization, worse on the left. The examiner found no limitation of motion with flexion to 135 degrees and extension to 180 degrees; there was no muscle atrophy. There was two plus effusion bilateral with a slightly positive McMurray test on the right side and bilateral crepitation. He was diagnosed with bilateral subpatellar chondromalacia with a probable lateral meniscal tear on the right side with moderate symptomatology. This evidence indicates painful motion of each knee with no compensable limitation of motion. As such, a minimum 10 percent rating is warranted, but not higher.

The Board further finds that evaluations in excess of 10 percent are not warranted for the Veteran's bilateral knee disabilities. The evidence persuasively weighs against such findings ankylosis, recurrent subluxation or lateral instability, dislocation or symptomatic removal of the semilunar cartilage, tibial or fibular impairment, genu recurvatum, extension limited to 15 degrees or more, flexion limited to 30 degrees or less, or the functional equivalent thereof.

Private treatment records reflect that in March 2008 the Veteran reported that his knees were bothering him. He reported increased positional pain in his knees. He denied swelling. Ranges of motion were normal. There was no effusion, joint laxity. Crepitus was noted with extension and flexion of the left
Veteran's bilateral knee disabilities. The evidence persuasively weighs against such findings ankylosis, recurrent subluxation or lateral instability, dislocation or symptomatic removal of the semilunar cartilage, tibial or fibular impairment, genu recurvatum, extension limited to 15 degrees or more, flexion limited to 30 degrees or less, or the functional equivalent thereof.

VA treatment records reflect that in April 2008 the Veteran presented to the emergency room reported pain in his left knee since twisting it while golfing two weeks prior. X-rays showed a small left knee joint effusion and minimal bilateral lateral osteophytic spurring of the patellae. He was diagnosed with a left knee strain and possible minor meniscus injury. In July 2008 his primary care physician noted knee pain. In September 2008 he reported right knee discomfort. This may be a clerical error, as x-rays showed mild osteoarthritis of the left knee.

On November 20, 2008, VA received a statement from the Veteran's representative indicating an intent to claim increased ratings for his bilateral knee disabilities. At the time, his appeal was not considered pending, and this was construed as a new claim.

The Veteran underwent a VA examination in December 2008. He reported bilateral stiffness, worse on the left. He described daily aching pain rated at 5-6/10 and elicited with physical activity. Gait exhibited with a limp. There was objective evidence of crepitus and tenderness to palpation of the joint line. Ranges of motion were marked as "normal" with flexion to 140 degrees and extension to 0 degrees, and not limited by repetitive use, pain, fatigue, weakness, lack of endurance, or incoordination. The examiner could not determine any additional limitation of motion caused by flare ups. Ligaments were stable, and stability tests were normal. X-rays were consistent with degenerative arthritis.

VA treatment records reflect that in February 2018 the Veteran reported that his knee pain was getting worse; he was informed the recent X-rays were negative and he was seen for falls associated with CMT Disease. At an August 2022 physical therapy session for his service-connected Charcot-Marie-Tooth syndrome, his muscle strength was diminished to 4/5 in bilateral knee extension and flexion. The same muscle strength was noted at neurology consultations in October 2022 and March 2023.

Even taking into account pain and associated functional limitations, there was no compensable limitation of motion. This evidence also shows there was no instability, ankylosis, tibial or fibular impairment, or genu recurvatum. While the March 1993 VA examiner found a slightly positive McMurray sign with a diagnosis of probable meniscal tear on the right side, there has been no subsequent diagnosis, treatment, or symptoms of such a disability, and no such tear was noted at his December 2008 VA examination. Because the diagnosis in March 1993 was speculative and provisional with the later evidence confirming the absence of meniscus involvement, the evidence is against a rating under DC 5258 or DC 5259.

The Board recognizes that both VA examinations are inadequate in their failure to comply with Correia and Sharp, but the Veteran did not attend the May 2024 examination which could have cured these deficiencies. While in some cases it is appropriate to seek a retrospective Sharp analysis based on the evidence of record, the Board finds that such is not the case here due to the Veteran's continued lack of cooperation with attempts to fulfill VA's duty to assist.

For these reasons, the Board finds that evaluations in excess of 10 percent are not warranted for the Veteran's bilateral knee disabilities at any point in the appeal period.

REASONS FOR REMAND

1. Entitlement to service connection for high arches of the bilateral feet

The Veteran claims service connection for high arches of the bilateral feet. He is already service connected for bilateral hammertoes.

As discussed above, the Veteran was scheduled for another VA examination in May 2024. He failed to report. He has not shown good cause for his failure to report, nor has he requested that the examination be rescheduled. In a July 2024 informal hearing presentation, his representative acknowledged his failure to report but did not request the Board remand
finds that evaluations in excess of 10 percent are not warranted for the Veteran's bilateral knee disabilities at any point in the appeal period.

REASONS FOR REMAND

1. Entitlement to service connection for high arches of the bilateral feet

The Veteran claims service connection for high arches of the bilateral feet. He is already service connected for bilateral hammertoes.

As discussed above, the Veteran was scheduled for another VA examination in May 2024. He failed to report. He has not shown good cause for his failure to report, nor has he requested that the examination be rescheduled. In a July 2024 informal hearing presentation, his representative acknowledged his failure to report but did not request the Board remand for a rescheduled examination. Rather, the representative argued that the appeal should be decided on the evidence already of record under 38 C.F.R. § 3.655(b).

The Board finds that remand is necessary to fulfill VA's duty to assist and provide the Veteran with an adequate medical opinion. While the Veteran failed to report to his May 2024 VA examination, there remains a need for a medical opinion to address whether his diagnosis of pes cavus is related to service-connected Charcot-Marie-Tooth syndrome.

2. Entitlement to service connection for residuals of hepatitis B

The Veteran claims service connection for residuals of hepatitis B.

Service treatment records reflect that the Veteran tested positive for hepatitis B in June 1988. A September 1992 retirement report of history notes that the hepatitis was found when he attempted to donate at a blood drive. Etiology was unknown.

The Veteran underwent a VA examination in March 1993. The examiner found no current disability, explaining that his service treatment records included a 1988 positive result for hepatitis B during a routine blood test, compatible with old resolved hepatitis. The examiner found no evidence or history of chronic hepatitis and stated that the Veteran was in excellent health currently. His serologic status confirmed a past infection, but he had no active ongoing liver disease.

As discussed above, the Veteran was scheduled for another VA examination in May 2024. He failed to report. He has not shown good cause for his failure to report, nor has he requested that the examination be rescheduled. In a July 2024 informal hearing presentation, his representative acknowledged his failure to report but did not request the Board remand for a rescheduled examination. Rather, the representative argued that the appeal should be decided on the evidence already of record under 38 C.F.R. § 3.655(b).

The Board finds that remand is necessary to fulfill VA's duty to assist and provide the Veteran with an adequate medical opinion. While the Veteran failed to report to his May 2024 VA examination, there remains a medical question as to whether his condition is due to service. Specifically, an examiner is needed to address the Veteran's treatment records to determine whether his in-service diagnosis of hepatitis B has any current residuals eligible for service connection.

3. Service connection for hearing loss

The Board previously remanded this issue to obtain a VA examination. The Veteran failed to report to the VA examination without good cause. Thus, the claim must be rated based on the evidence of record. See 38 C.F.R. § 3.655(a).

To this end, the record is incomplete. The Veteran has undergone audiological evaluation at his VA medical center (VAMC) on numerous occasions, including in September 2017, September 2021, and October 2022. These medical records indicate that audiological testing was conducted. However, the test results have not been included in the claims file. Because these records are constructively a part of the record on appeal, they must be obtained and associated with the claims file.

Should these VA audiological results indicate the presence of a VA hearing impairment meeting VA's definition of a disability under 38 C.F.R. § 3.385, the Board finds that an opinion is needed to determine if the hearing impairment is related to the Veteran's service.

The matters are REMANDED for the following action:

1. Obtain the results of all audiological testing reports conducted by VA.

2. If VA medical records show a diagnosis of a hearing loss impairment meeting VA's definition of a disability under 38 C.F.R. § 3.385, obtain a medical opinion from an appropriate clinician regarding whether the condition is due to the Veteran's service.

3. Obtain a medical opinion from an appropriate clinician for the Veteran's claimed pes cavus. The claims file must be reviewed by the examiner. The examiner should opine as to:

(a.) Whether the Veteran's bilateral pes cavus began during service or is otherwise etiologically related to service, to include
service.

The matters are REMANDED for the following action:

1. Obtain the results of all audiological testing reports conducted by VA.

3. Obtain a medical opinion from an appropriate clinician for the Veteran's claimed pes cavus. The claims file must be reviewed by the examiner. The examiner should opine as to:

(a.) Whether the Veteran's bilateral pes cavus began during service or is otherwise etiologically related to service, to include any in-service treatments and complaints related to the feet and the in-service finding of pes cavus.

(b.) Whether the Veteran's bilateral pes cavus was at least as likely as not caused by his service-connected Charcot-Marie-Tooth syndrome.

(c.) Whether the bilateral pes cavus condition has been at least as likely as not aggravated (i.e., worsened beyond its natural progression) by a different medical condition, particularly his service-connected Charcot Marie tooth disease? In so doing, the examiner must address the June 2018 VA medical opinion finding that Charcot-Marie-Tooth syndrome caused problems with high arches during service.

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4. Obtain a medical opinion from an appropriate clinician for the Veteran's claimed hepatitis B. The claims file must be reviewed by the examiner. The examiner should opine as to whether it is at least as likely as not that the Veteran experiences any current residuals of his in-service diagnosis of hepatitis B.

Corey Bosely

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. Gallagher, 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.

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