Citation Nr: 0526381 Decision Date: 09/27/05 Archive Date: 10/05/05 DOCKET NO. 03-08 693A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for hypertension from July 1, 2001, and in excess of 10 percent from August 24, 2004. 2. Entitlement to an initial compensable rating for bilateral pes planus. 3. Entitlement to an initial rating in excess of 10 percent for a low back disability. 4. Entitlement to service connection for residuals of Eustachian tube dysfunction. 5. Entitlement to service connection for tendonitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The veteran served on active duty from June 1981 to June 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C. In June 2005, the veteran testified at a Board hearing in Washington, D.C. During the hearing the veteran raised the issue of an earlier effective date for a residual scar from a hernia operation. This matter is referred to the RO for appropriate action. The issue of entitlement to service connection for residuals of Eustachian tube dysfunction is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. FINDINGS OF FACT 1. From the effective date of the grant of service connection to August 24, 2004, the veteran's hypertension was not manifested by diastolic pressures predominantly 120 or more. 2. From August 24, 2004, the veteran's hypertension has not been manifested by diastolic pressure predominantly 110 or more, or, systolic pressure predominately 200 or more. 3. The veteran's service-connected bilateral pes planus is manifested by complaints of pain, but without clinical evidence of pain on manipulation; the weight-bearing line is not over or medial to the great toe, nor is there inward bowing of the tendo achillis. 4. Since the effective date of the grant of service connection, the veteran's low back disability is productive of slight to moderate limitation of motion with functional loss; it is not manifested by forward flexion of the thoracolumbar spine 30 degrees or less or by ankylosis or incapacitating episodes. 5. The veteran does not have current chronic tendonitis of the left index finger. CONCLUSIONS OF LAW 1. The criteria for an initial increased rating in excess of 20 percent for hypertension from July 1, 2001, to August 24, 2004, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2004). 2. The criteria for an increased rating in excess of 10 percent for hypertension from August 24, 2004, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2004). 3. The criteria for an initial compensable rating for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2004). 4. The criteria for an initial rating in excess of 10 percent, to 20 percent, for low back disability have been met for the period from July 1, 2001. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5292 and 5295 (2002) and Diagnostic Code 5237 (2004). 5. The criteria for service connection for tendonitis of the left index finger have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The United States Court of Appeals for Veterans Claims' (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the RO furnished VCAA notice to the veteran regarding the issues on appeal in December 2002, which was after the October 2001 decision from which this appeal arises. Because the VCAA notice in this case was not provided to the appellant prior to the RO decision from which he appeals, it can be argued that the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. While the Court did not address whether, and, if so, how, the Secretary can properly cure a defect in the timing of the notice, it did leave open the possibility that notice error of this kind may be non-prejudicial to a claimant. In this respect, all the VCAA requires is that the duty to notify is satisfied, and that appellants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). VA has fulfilled its duty to notify the appellant in this case. In the December 2002 letter, as well as the February 2003 statement of the case and December 2004 supplemental statement of the case, the RO informed the appellant of the applicable laws and regulations, including applicable provisions of the VCAA, the evidence needed to substantiate the claims, and which party was responsible for obtaining the evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board also notes that the December 2002 letter implicitly notified the claimant of the need to submit any pertinent evidence in his possession. In this regard, the claimant was advised to identify any source of evidence and that VA would assist in requesting such evidence. The Board believes that a reasonable inference from such communication was that the claimant must also furnish any pertinent evidence that he may have and that the requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board also finds that all necessary assistance has been provided to the appellant. The RO has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate his claims, including obtaining medical records identified by the appellant. In addition, the appellant was afforded a VA contract examination during the appeal period, and was provided with the opportunity to attend a hearing that he attended in June 2005. The appellant has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the appellant in the claim under consideration and that adjudication of the claim at this juncture, without directing or accomplishing any additional notification and or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Increased Rating Claims Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of disability evaluations following an award of service connection, the severity of the disabilities at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). A. Hypertension The pertinent rating criteria provide for a 10 percent rating with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating requires diastolic pressure that is predominately 110 or more, or; systolic pressure predominantly 200 or more. For a 40 percent rating, diastolic pressure must be predominantly 120 or more. A 60 percent rating requires that diastolic pressure be predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Rating in Excess of 20 Percent Prior to August 24, 2004 The veteran's service medical records reflect diagnoses of hypertension, uncontrolled. These records reveal some systolic readings over 160, but predominantly less than 200. Similarly, there are some diastolic readings over 100, but predominantly less than 110. An April 1999 service medical record shows that the veteran did not desire blood pressure medication, but instead preferred to try lifestyle modifications. He was cautioned to very carefully and frequently monitor his blood pressure and report to medical for medication if the trend was systolic readings equal to or greater than 140, and diastolic readings equal to or greater than 90. His November 2000 retirement examination report contains a diagnosis of hypertension and notes that the veteran had been taking Lisinopril for the disability, but stopped medical treatment in April 1999 preferring instead to control it with weight reduction and exercise. His blood pressure reading at that time was 124/89. In October 2001, the veteran was seen in a military medical clinic complaining of headaches and sinus congestion. His blood pressure readings were 198/130, 194/128, 174/113 and 172/113. A private podiatry report dated in December 2001 notes that the veteran was seen in the emergency room "over the weekend" for chest and back pain and was found to have hypertension. He was noted to be a very active individual who did biking and weightlifting, although he had not weight- lifted in several months. His current medications included Lisinopril and Atenolol. During the January 2005 hearing, the veteran testified that he was on three different medications for his hypertension and had been taking medication since 2000. He said medication improved his condition, but the condition "flares up really bad" every now and then. He said that the last time he saw his doctor was earlier that year at which time it was recommended that he undergo a physical. He denied medical treatment for hypertension on a regular basis and said he saw his doctor "as necessary". The veteran's initial 20 percent evaluation for hypertension was based on his service medical records. As indicated above, there are a few diastolic pressure readings over 110, but predominantly less than 120, and systolic pressures are predominantly less than 200. There is also the October 2001 postservice military clinic record containing some of the highest readings on record of 198/130, 194/128, 194/113 and 190/110. Based on these readings, the veteran was assigned a 20 percent rating effective from the date of the grant of service connection, which is the day following his June 30, 2001, service discharge. In order for a higher, 40 percent, rating to be warranted for the period from July 1, 2001, to August 24, 2004, the evidence would have to show diastolic blood pressure predominately 120 or more. The evidence does not show this. In fact, with exceptions, most of the diastolic readings are under 110. As the preponderance of the evidence is against a rating in excess of 20 percent for the veteran's service-connected hypertension from the date of the grant of service connection to August 24, 2004, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b). Rating in Excess of 10 Percent From August 24, 2004 The veteran testified in June 2005 that his hypertension improved with medication, but that he still experienced flare-ups every now and then. He said he had been to a VA nutritionist and put on a low salt diet. He also said he started taking medication in 2000. He admitted that he was not being seen on a regular basis for his hypertension. According to an August 2004 VA contract (QTC) examination report, which is the only pertinent medical evidence on file for this period, the veteran reported that he was taking current medication of atenolol, Diovan, and Adalat. He denied any side effect profile, but admitted to associated intermittent headaches. Findings revealed blood pressure readings of 148 (systolic) over 96 (diastolic) on sitting, 148/96 on lying, and 148/96 on standing. The examiner confirmed the diagnosis of hypertension. As the August 2004 examination report shows, the veteran's diastolic blood pressure readings on sitting, standing and lying, were all under 100 with readings of 96. As for systolic readings, these readings were all under 160, with readings of 148. This examination report also indicates that the veteran takes medication to control his hypertension. In short, the evidence most approximates the criteria for a 10 percent rating under Code 7101 requiring continuous medication for control. The criteria for a higher, 20 percent, rating requiring diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more, simply have not been met. As the preponderance of the evidence is against a rating in excess of 10 percent for the veteran's service-connected hypertension from August 24, 2004, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b). B. Pes Planus The veteran contends that the severity of his service- connected bilateral pes planus warrants a higher, compensable, disability rating. He testified in June 2005 that he still experiences pain and limps on some days. As far as the pain, he assessed it at a 2 or 3 on a normal day, and a 7 "when it really hurts." He said he uses a "Scot's liner" underneath his orthotics. He also said he had not been to his foot doctor in about a year. He added that he had gone to VA to try to get new orthotics, but was told they couldn't do anything for him so he left. Bilateral pes planus is rated under Diagnostic Code 5276 for flatfeet. Under this code, a noncompensable (0 percent) rating is warranted for flatfeet that are mild, with symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate flatfeet, with weight- bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 30 percent rating is warranted for bilateral flat feet that is severe, with objective evidence of marked deformity (pronation, abduction, etc), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. In December 2001, the veteran presented to a private podiatry clinic complaining of pain on the tops of both feet which had been ongoing for a couple of months. He said he had some insoles made in 1999 and had been wearing orthotics pretty regularly. It is noted that he was employed as a consultant at a desk job. On examination there was no tenderness, edema or erythema noted in either foot. There was no tenderness on range of motion of the ankle, subtalar or midtarsal joints. Dorsiflexion was limited to about 5 degrees with the knee flexed and extended. On weight bearing the veteran showed a mild bunion deformity on the right side and depressed medial longitudinal bilateral arches. There was some mild talar bulging medially. His neurovascular status was intact. X- rays revealed mild arthritis at the anterior aspect of the right ankle and a depressed medial longitudinal arch with a skew foot. No significant abnormalities were noted. An impression was given of pes planus foot type and neuritis. A January 2002 private podiatry record shows that the veteran was being seen for a follow-up regarding pain in the front of his right ankle. He brought his orthotics with him to the appointment. Examination was limited to the ankle. Later in January 2002, the veteran reported for a follow-up for his right foot. The physician noted that other than orthotics the veteran's treatment had not really changed since his last visit. On examination the physician could not elicit any discomfort in the veteran's foot. The veteran said the discomfort occurs after he is on it for a good length of time and was more through the forefoot. An impression of osteoarthritis was given. The veteran was also prescribed a plantar rest strap on the right side and Naprosyn. Findings from a VA contract examination in August 2004 show that the veteran had bilateral appreciable pes planus with mild valgus deformity of the Achilles tendons without hallux valgus or hammertoe deformities bilaterally. He had a normal gait. His complaints included continued discomfort and an inability to ambulate long distances or stand for long periods of time. He denied any recent exacerbating symptomatology or trauma. X-rays of the right foot was with non-weight bearing views and the left foot showed hallux valgus. The examiner diagnosed the veteran as having symptomatic pes planus without current evidence of osteoarthritic changes. While it is evident that the veteran does suffer from bilateral pes planus which results in some symptomatology, after reviewing the record the Board concludes that the preponderance of the evidence is against a finding that the pes planus is more than mild in degree. Clinical examination in August 2004 revealed mild valgus deformity of the Achilles tendon. Findings did not reveal that there was forefoot or midfoot malalignment and the veteran demonstrated a normal gait. Although hallux valgus of the left foot was noted on an August 2004 x-ray, this finding together with mild valgus deformity of the Achilles does not approximate more than mild impairment. The veteran has reported pain and discomfort with prolonged walking and standing, specifically describing the pain as a 2 or 3 in intensity on a "normal day" and a 7 "when it really hurts"; however, there have been no clinical findings of pain on manipulation during the August 2004 VA contract examination. Indeed, on examination in January 2002, the examiner stated he could not elicit any discomfort in the veteran's foot. Also, the veteran reported that he wears orthotics with a liner. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the veteran's claim for assignment of a higher, compensable, evaluation for bilateral pes planus at any stage since the date of the grant of service connection. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Should the veteran's pes planus disability increase in severity in the future, he may advance a claim for an increased rating. C. Low Back Disability During the August 2004 QTC examination, the veteran reported nontraumatic progressive discomfort of the lumbar spine since service that is exacerbated by bending, twisting, heavy lifting and standing for long periods of time. He denied any lower extremity paresthesias, bowel or bladder dysfunction, decrease in muscle strength, or gait disturbance. He estimated a pain level of 2 to 8 out of 10 that is ameliorated with Tylenol 3. He reported recurrence once per month lasting 18 to 20 hours. He denied any recent exacerbating symptomatology or history of trauma. Findings revealed appreciable radiating pain on movement without muscle spasm or tenderness to palpation. Straight leg raise is negative bilaterally. There were no current signs of radiculopathy. Range of motion revealed flexion to 80 degrees with discomfort, extension to 25 degrees with pain, right and left lateral flexion to 30 degrees without ankylosing or pain. There was no further limitation by fatigue, weakness, lack of endurance, or incoordination. Lumbosacral spine x-rays were negative. The veteran was diagnosed as having intermittent symptomatic lumbar paraspinal strain symptomatology. The veteran testified in June 2005 that approximately two to three times a month he experiences a nominal flare-up of his back, which is sort of like an irritation. He said that he takes medication when it gets really bad, about three to four times a year. He also said when it gets really bad he takes two Tylenol and stays in bed. He said the last time it was that bad was about one year earlier. The veteran is currently assigned an initial 10 percent rating under the old Code 5295 based on characteristic pain on motion. This determination was primarily based on findings from the August 2004 VA examination revealing an appreciable radiating pain on movement. Since the evidence does not demonstrate muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in the standing position, a higher than 10 percent rating under this Code is not warranted. In fact, findings in August 2004 specifically found no muscle spasm. However, by evaluating the veteran's back disability under Code 5292 for limitation of motion, it is clear that he is entitled to the 20 percent rating from the effective date of the grant of service connection. In this regard, limitation of motion findings in August 2004 reflect slight to moderate limitation of motion based on a strict adherence to the limitation of motion criteria. The evidence also shows functional loss. 38 C.F.R. §§ 4.40, 4.59 (2004). Specifically, in August 2004, the veteran demonstrated forward flexion to 80 degrees with discomfort, and extension to 25 degrees with pain. In addition, as previously noted, appreciable radiating pain on movement was noted in August 2004, and the veteran reported nontraumatic progressive discomfort of the lumbar spine exacerbated with bending, twisting, heavy lifting and standing for prolonged periods of time. In addition, the veteran complained of "monthly recurrences". Thus, based on slight to moderate limitation of motion findings, together with the veteran's functional loss due to pain, the Board finds that the veteran is entitled to a higher evaluation under Code 5292 to 20 percent. See 38 C.F.R. §§ 4.40, 4.45; Deluca, supra. Regarding a higher than 20 percent rating from the effective date of the grant of service connection, the medical evidence does not support such a rating under the old Code 5292. In short, the actual range of motion findings in 2004, to include limitation on forward flexion to 80 degrees, simply do not rise to the level of severe limitation of motion, even after considering a higher rating for functional loss due to pain and flare-ups. 38 C.F.R. §§ 4.40, 4.59; Duluca, supra. Similarly, a higher than 20 percent rating is not warranted if the veteran were to be evaluated under the old Code 5295 for lumbosacral strain. Notwithstanding the fact, as is noted above, that the evidence does not meet the criteria for a 20 percent rating under this code, it likewise does not meet the criteria for a 40 percent rating. That is, the evidence does not show objective medical findings of severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, or abnormal mobility on forced motion. The only other schedular criteria for consideration of a higher than 20 percent rating under the old criteria would be for ankylosis of the spine (Code 5286). However, in the absence of evidence of ankylosis, consideration of this Code is not warranted. Notably, the August 2004 VA examiner found that the veteran's demonstrated rotation and lateral bending were performed without ankylosing. Although the August 2004 examiner noted that the veteran had appreciably radiating pain on movement, the examiner also indicated there were no current signs of radiculopathy. Moreover, neurological findings revealed muscle strength of 5/5 throughout, reflexes of 2+ bilaterally throughout, and normal sensation to pinprick and light touch throughout. Moreover, there are no complaints or medical findings of incapacitating episodes on record that resulted in physician- prescribed bed rest. Consequently, evaluating the veteran's back disability under the old or new criteria for intervertebral disk syndrome is not warranted. See 38 C.F.R. § 4,71a, Diagnostic Code 5293, 5243 (2002, 2004). Lastly, in regard to the new criteria, a higher than 20 percent rating, to 40 percent, is not warranted under the revised Code 5237 because the veteran has not demonstrated forward flexion of the thoracolumbar spine to 30 degrees or less. Rather, he demonstrated forward flexion of the lumbosacral spine to 80 degrees in August 2004. Also, since this rating is warranted for symptoms with or without pain, the veteran's complaints of pain would already be contemplated in the 20 percent rating under the new criteria. In conclusion, the Board finds that the preponderance of the evidence supports an increased rating to 20 percent, but no higher, for the veteran's lumbosacral strain from the date of the grant of service connection, effective July 1, 2001. III. Service Connection for Tendonitis The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service medical records show that the veteran was treated for chronic tendonitis of the left index finger in September 1995 and October 1995. A November 2000 retirement examination report shows a normal clinical evaluation of the veteran's upper extremities. During a June 2005 hearing, the veteran testified that he had not sought medical treatment for the left index finger and was not currently having any problems with his finger. He explained that he had "put it on there so that later on if something happens to it we could refer back to that it happened while I was in the military." QTC examination findings in August 2004 do not reflect complaints or findings related to tendonitis of the left index finger, although the veteran did complain of tendonitis in his feet. However, the veteran was not diagnosed as having tendonitis. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incident has resulted in a disability. 38 U.S.C.A. §§ 1110, 1131. Thus, in the absence of proof of the present disability being claimed, i.e., tendonitis of the left index finger, there can be no valid claim for service connection. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In sum, the preponderance of the medical evidence is against a finding that there is a current disability of the left index finger, namely tendonitis. As such, the benefit of the doubt rule does not apply and the claim must be denied. See 38 U.S.C.A. § 5107. ORDER Entitlement to an initial rating in excess of 20 percent for hypertension from July 1, 2001, is denied. Entitlement to a rating in excess of 10 percent for hypertension from August 24, 2004, is denied. Entitlement to an initial compensable rating for bilateral pes planus is denied. Entitlement to an initial rating in excess of 10 percent, to 20 percent, for lumbosacral strain for the period from July 1, 2001, is granted; subject to the law and regulations governing the payment of monetary benefits. Entitlement to service connection for tendonitis is denied. REMAND The veteran's service medical records show multiple medical visits for ear problems, including Eustachian tube dysfunction. Eustachian tube dysfunction is also noted on the veteran's November 2000 retirement examination report. In August 2004, the veteran underwent a QTC examination for his audiological complaints. The examiner gave an impression of neurosensory hearing loss, tinnitus, dizziness, and referred otalgia, but did not provide an opinion as to the etiology of these findings with the exception of dizziness. Consequently, in light of evidence showing numerous inservice problems related to the veteran's ear, including Eustachian tube dysfunction, and medical evidence of present ear, nose and throat findings, further medical development is warranted by way of a medical nexus opinion. 38 U.S.C.A. § 5103A(d). Under 38 C.F.R. § 3.385, for the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. In this regard, the record contains an audiogram in graph form dated in February 2002, but the audiogram does not contain the numerical interpretation of the graph findings. Also, although the August 2004 QTC examination report contains an impression of bilateral high frequency neurosensory hearing loss, it does not include the audiological findings. Thus, in order to properly consider hearing loss as a residual of Eustachian tube dysfunction, the examination should include audiological findings sufficient to allow for a determine as to whether the veteran has a hearing impairment that meets VA's definition of such disability. See 38 C.F.R. §§ 4.85, 4.86; Kelly v. Brown, 7 Vet. App. 471 (1995). Accordingly, this matter is REMANDED for the following action: 1. The veteran should be afforded an appropriate examination for the purpose of determining the nature and etiology of his ear problems. Any tests or studies deemed appropriate by the examiner to make this determination should be undertaken, to include audiological findings that satisfy the requirements of 38 C.F.R. § 4.85. The examiner should be asked to review the evidence contained in the claims file, along with a copy of this REMAND, and provide all present ear diagnosis(es) related to the veteran's ears, as well as an opinion as to whether it is at least as likely as not that any such diagnosis(es) is/are related to the veteran's period of service. 2. After completion of the above and any additional development of the evidence that the RO may deem necessary, the RO should again review the record and determine if the veteran's claim for service connection for residuals of Eustachian tube dysfunction can be granted. The veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The appellant and his representative have the right to submit additional evidence and argument on the matter or 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs