Citation Nr: 0325996 Decision Date: 10/02/03 Archive Date: 10/15/03 DOCKET NO. 99-12 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 20 percent for bilateral hearing loss. 2. Entitlement to an initial disability evaluation in excess of 10 percent for residuals of a sprained right ankle. 3. Entitlement to an initial disability evaluation in excess of 10 percent for residuals of a sprained left ankle. 4. Entitlement to service connection for ocular albinoidism. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Associate Counsel INTRODUCTION The veteran had active service from April 1984 to May 1997. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from August 1997 and January 2001 rating decisions of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). The August 1997 rating decision granted service connection for bilateral hearing loss, residuals of sprained right ankle, and residuals of a sprained left ankle. Service connection was denied for ocular albinoidism. A 10 percent disability evaluation was assigned for the veteran's hearing loss and noncompensable disability evaluations were assigned for each of the veteran's ankles, effective May 1997. In January 2001, the veteran's disability evaluations were increased to 20 percent disabling for his bilateral hearing loss and 10 percent disabling for each of his ankles, also effective May 1997. REMAND The veteran essentially contends that the disability evaluations assigned for his bilateral hearing loss, residuals of a sprained right ankle, and residuals of a sprained left ankle do not accurately reflect the severity of those disabilities. In addition, the veteran claims entitlement to service connection for ocular albinoidism. A review of the record leads the Board to conclude that additional development is needed in this case before proceeding with appellate disposition, as the record does not contain sufficient development to make a decision on the veteran's claim at this time. As a preliminary matter, the Board notes that while the veteran's appeal was pending, there was a significant change in the law pertaining to veteran's benefits. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (2003). The VCAA applies to all pending claims for VA benefits, and provides that the VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his or her claim for benefits. Changes potentially relevant to the veteran's appeal include the establishment of specific procedures for advising the claimant and his or her representative of information required to substantiate a claim, a broader VA obligation to obtain relevant records and advise claimants of the status of those efforts, and an enhanced requirement to provide a VA medical examination or obtain a medical opinion in cases where such a procedure is necessary to make a decision on a claim. This legislation is applicable to the veteran's claims. A review of the claims file does not reflect that the appellant was properly advised of the changes brought about by the VCAA, 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107. While the Board acknowledges that the veteran was provided a copy of the provisions of the VCAA in April 2003, the record is entirely negative for evidence of consideration of the provisions of the VCAA by the RO and the veteran's claims were certified to the Board without the veteran being given appropriate notice of his rights and responsibilities and VA's responsibilities under the VCAA. Recent decisions by the U.S. Court of Appeals for Veterans Claims have mandated that VA ensure strict compliance with the provisions of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board notes that the RO did not prior to issuance of the statement of the case, send a letter to the veteran telling him what was needed to substantiate his claim, the veteran's rights and responsibilities under the VCAA, and whose responsibility it would be to obtain evidence. As a consequence, the veteran's claim was certified to the Board without the veteran being given appropriate notice of his rights and responsibilities, and VA's responsibilities under the VCAA. However, the Board cannot correct this deficiency. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). As a result of the change in the law brought about by the VCAA and the lack of proper notification of that change to the veteran, the veteran's claims must be remanded to the RO to ensure that the veteran is given proper notice of his rights and responsibilities under the VCAA and to ensure that all duty to notify and duty to assist obligations of the VA are met. The Board observes that the record indicates that the veteran was treated at the Gainesville, Tallahassee, and Lake City VA Medical Centers from January 1998 through October 2000, but that is unclear whether the veteran's complete VA treatment records are currently associated with the veteran's claims file. The Board observes that, in January 2001, the RO requested additional VA medical records, not available electronically, but that there is no indication in the record whether these medical records are available at the relevant RO or will be associated with the veteran's claims file. Further, a review of the record discloses that no additional VA treatment records for the time period from October 2000 to the present have been submitted and there is no evidence that the RO attempted to obtain these treatment records. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is deemed to have constructive knowledge of all VA records and such records are considered evidence of record at the time a decision is made). See also VAOPGCPREC 12-95, 60 Fed. Reg. 43186 (1995) ("...an [agency of original jurisdiction's] failure to consider records which were in VA's possession at the time of the decision, although not actually before the AOJ, may constitute clear and unmistakable error...."). Accordingly, any additional medical records related to the veteran's bilateral hearing loss, residuals of sprained right and left ankles, and ocular albinoidism should be associated with the veteran's claims file. Additionally, the Board finds that it would be helpful in this case to afford the veteran an additional VA audiological examination. The Board observes that the veteran was afforded VA audiological examinations in July 1999 and February 2001 in connection with his claim for an increased initial disability evaluation for his bilateral hearing loss, and that reports of those examinations are associated with the veteran's claims file. Nevertheless, the examination reports and VA treatment records create a question as to the veteran's disability picture. In this regard, the Board notes that VA treatment records show that the veteran has mild to severe sensorineural hearing loss bilaterally, with poor word recognition scores, and that the veteran wore hearing aids. The July 1999 VA audiological examination showed a right ear pure-tone threshold average of 64 and a left ear pure-tone threshold average of 64, with Maryland CNC speech recognition scores of 66 percent in the right ear and 82 percent in the left ear. According to 38 C.F.R. § 4.85, Table VI, the veteran had Level VI hearing acuity in his right ear and Level IV hearing acuity in his left ear. However, the February 2001 VA audiological examination showed pure-tone average thresholds of 63 for each ear and Maryland CNC speech recognition scores of 96 percent for each ear, which, according to 38 C.F.R. § 4.85, Table VI, indicated that the veteran had Level II hearing acuity in each ear. In short, the evidence of record is unclear as to the veteran's actual level of hearing acuity. The Board cannot render an informed decision concerning the level of disability caused by the veteran's service-connected bilateral hearing loss in the absence of specific medical information, including another audiological evaluation, clarifying the conflicting medical evidence. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c) (VA has an affirmative duty to obtain an examination of the claimant at Department health-care facilities if the evidence of record does not contain adequate evidence to decide a claim). In addition, the Board also notes that the veteran was afforded a VA examination in July 1999 in connection with his claims for increased disability evaluations for his residuals of sprained right and left ankles. The examination report is associated with the veteran's claims file. Although the examination report discusses the veteran's complaints and the results of physical examination of the veteran, the examination report does not include the clinical findings necessary to evaluate the veteran's disability under the Schedule for Rating Disabilities, and more specifically, under 38 C.F.R. § 4.71a, Diagnostic Codes 5010 and 5270-5273. Likewise, the VA examination did not provide an adequate description of functional loss due to pain, weakened movement, fatigability, and incoordination pursuant to 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995) (weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled). Therefore, the Board finds that the veteran should be afforded an additional VA examination to determine the veteran's current level of impairment due to his ankle disorders. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c) (VA has an affirmative duty to obtain an examination of the claimant at Department health-care facilities if the evidence of record does not contain adequate evidence to decide a claim). Therefore, it is the Board's opinion that in order to give the veteran every consideration with respect to the current appeal and to ensure due process, further development of the case is necessary. Accordingly, this case is REMANDED for the following action: 1. Review the claims file and ensure that all notification and development action required by the VCAA is completed under 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002), including written notice of the evidence, if any, the veteran is expected to provide in support of the claims and the evidence, if any, that the RO will obtain for him. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Any notice given, or action taken thereafter, must comply with the holdings of Disabled American Veterans v. Secretary of Veterans Affairs, supra. In particular, the RO is requested to send the veteran notice of the provisions of the VCAA, the kind of information and evidence needed from him, and what he could do to help his claims, as well as his and the VA's responsibilities in obtaining evidence. He should be given an opportunity to supply additional information, evidence, and/or argument and to identify additional evidence for VA to obtain regarding the veteran's disability evaluation for his service- connected bilateral hearing loss, residuals of a sprained right ankle, and residuals of a sprained left ankle, as well as regarding the veteran's claim for service connection for ocular albinoidism. The RO should then obtain any referenced records. All new evidence and/or arguments must be associated with the veteran's claims folder. 2. The RO should contact the veteran and request him to provide the names and addresses of all health care providers who have treated him for his bilateral hearing loss, residuals of sprained right and left ankles, and ocular albinoidism. After securing any necessary authorization, the RO should obtain and associate with the claims file records of this treatment, including, but not limited to: a. All written (non-electronic) medical records from the relevant VA medical center(s) for the period from January 1998 to October 2000. b. All (electronic and written) medical records from the relevant VA medical center(s) for the period from October 2000 to the present. 3. Following completion of the aforementioned development and the receipt of any medical evidence submitted or identified by the veteran, the veteran should be afforded an audiogram and Maryland CNC speech recognition test to determine the nature and severity of the veteran's bilateral hearing loss. The veteran's VA claims folder should be made available to the examiner for review. The examiner is requested to review all pertinent records associated with the claims file, including the veteran's July 1999 and February 2001 VA examination reports. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is also requested to review all pertinent records associated with the claims file and offer an opinion as to whether the veteran's bilateral hearing loss has improved or worsened, explaining the inconsistencies between the veteran's July 1999 and February 2001 VA audiological evaluations, while contemplating the veteran's VA treatment records. The examiner is requested to report complaints and clinical findings in detail and the basis for the examiner's opinion should be fully explained with reference to pertinent evidence in the record. 4. Following completion of the aforementioned development and the receipt of any medical evidence submitted or identified by the veteran, the veteran should be afforded an examination by an orthopedist to ascertain the severity and manifestations of the veteran's residuals of sprains of the right and left ankles, including clinical findings correlating with the pertinent schedular criteria. The examining physician should review the claims file, conduct all indicated studies, report pertinent medical complaints, symptoms and clinical findings. The examiner should provide a medical rationale for all conclusions and opinions. The examiner is requested to review the veteran's records with a view towards assessing the veteran's current level of impairment due to his residuals of right and left ankle sprains. Foremost, the examiner should identify all residuals attributable to the veteran's right and left ankle sprains. The examiner is requested to clinically correlate the veteran's complaints and findings to each diagnosed disorder. The examiner must also specify which disorders or manifestations are causally or etiologically related to the veteran's service-connected residuals of sprains of the right and left ankles. The examiner should report the range of motion measurements for the veteran's ankles and provide the normal range of motion of an ankle. To the extent possible, the VA examiner must provide an objective characterization as to whether there is any pain, weakened movement, or excess fatigability, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) fatigability; or (4) incoordination. The examiner should describe whether pain found to be related to his residuals of sprains of the right and left ankles significantly limits his functional ability, particularly during flare-ups or when the joints are used repeatedly. To the extent possible, the VA examiner must also provide an objective characterization as to the duration and severity of such exacerbations. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. X-rays should be performed and, if arthritis of the ankle is present, the examiner should discuss the etiology of the arthritis. If ankylosis is present, the VA examiner should indicate the extent of the ankylosis, as well as indicate any neurological or muscular impairment. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (2003), the claims file must be made available to the examiner for review in connection with the examination. The examiner should be provided a full copy of this remand, and the examiner is asked to indicate that he or she has reviewed the claims folder. 5. The RO should review the veteran's claims in light of all evidence associated with the claims file subsequent to the transfer of the claims file to the Board. If the benefits sought are not granted, the veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this remand is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable at this time. The veteran is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is notified. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.43 and 38.02. _________________________________________________ WARREN W. RICE, JR. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2002).