Citation Nr: 0810031 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 02-09 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for coronary artery disease (CAD), claimed as a heart condition, secondary to the service-connected disability of bilateral varicose veins. 3. Entitlement to total disability rating for compensation purposes based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The veteran served on active duty from October 1940 to November 1945. This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision rendered in August 2001 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. A motion to advance this case on docket, due to the veteran's age was granted by the Board in March 2004. See 38 U.S.C.A. § 7101 (West 2002); 38 C.F.R. § 20.900(c) (2007). This case was previously before the Board in April 2004, when a claim to reopen the previously denied claim for service connection for hearing loss was granted, and the issue of service connection for hearing loss was remanded for further development, along with the with the other issues listed on the title page of this decision. Following completion of the development, the Board in a May 2005 decision, denied these issues, along with 2 additional issues of entitlement to increased ratings for varicose veins of the left and right legs. The veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court), which granted a Joint Motion for Remand, vacating the portion of the Board's May 2005 decision that denied service connection for hearing loss, service connection for CAD and entitlement to a TDIU and remanded these issues back to the Board for additional development. The Joint Motion is noted to have agreed to have dismissed the additional issues of entitlement to increased ratings for varicose veins of the left and right legs that had been before the Board in May 2005, and these issues are thus no longer in appellate status. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). In this matter the veteran alleges entitlement to service connection for hearing loss on a direct basis, to include as due to acoustic trauma, as well as based on continuity of symptoms from ear infections treated inservice. He also alleges entitlement to service connection for CAD, to include as secondary to his service- connected varicose veins. The Court is noted to have granted the Joint Motion for Remand in July 2007. The Joint Motion pointed out that the Board had inadequate reasons and bases for its decision denying the enumerated claims. First, the Joint Motion pointed out that the veteran, being a combat veteran, had a reduced evidentiary burden to prove that an injury occurred in service under 38 U.S.C.A. § 1154(b), and 38 C.F.R. § 3.304(b). In this matter, the Board was noted to have failed to discuss whether the veteran was exposed to acoustic trauma during combat and whether the VA examination relied on by the Board in its denial had taken into account the likelihood of exposure to acoustic trauma. Further it was noted that the Board failed to address whether the VA examination was premised upon the Board's prior April 2004 decision in which the veteran had established continuity of symptoms from 1948 to the present for ear problems. Regarding the CAD claim, the Joint Motion pointed out that the Board failed to address whether the veteran's CAD was aggravated by his service-connected varicose veins. Finally, the Joint Motion noted that that the Board failed to address whether the veteran's TDIU claim was inextricably intertwined with any issues on appeal. A review of the VA examinations conducted in July 2004 reflect that they are inadequate for the purpose of properly addressing the veteran's service connection claims as directed by the Joint Motion. The July 2004 VA audiological examination is noted to give a 5-year history of exposure to infantry noise with no occupational or recreational noise said to have taken place. Although this examination did diagnose a profound right ear sensorineural hearing loss (SNHL) and a moderately severe to severe left ear SNHL, no opinion was given as to the etiology of this hearing loss, to include the acoustic trauma, and no discussion was made as to the continuity of ear infection symptoms treated shortly after service and continuing thereafter, and whether they were related to the upper respiratory infection symptoms treated in service including nasopharyngitis treated in December 1943. Likewise a VA ear disease examination also conducted in July 2004 discussed the history of ear infections claimed by the veteran in 1940, with recurrent ear infections, although the veteran was unable to give details. Following physical examination, the examiner diagnosed total right and severe left ear SNHL, but failed to discuss the continuity of bilateral ear and hearing symptoms from 1948 to the present, and again failed to address exposure to acoustic trauma during combat. Regarding the CAD claim, the July 2004 VA examination that addressed this condition is noted to have discussed the etiology of this condition in some detail and even said that the veteran's current heart condition was not at least as likely related to his service-connected varicose veins, nor as the result of the same or underlying pathology, nor the result of active service. However this examination did not discuss whether there was aggravation of his CAD due to the service-connected varicose veins. The Court has held that when the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, the Board observes that the veteran's service connection claims for hearing loss and for CAD are so closely tied with the issues of entitlement to a TDIU, that a final decision on the latter issue cannot be rendered until a decision on the service connection issue has been rendered, and thus they are "inextricably intertwined." See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, it would be premature and prejudicial for the Board to consider the issue of TDIU at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993). Therefore, this claim must be remanded to the AOJ for appropriate development and action. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. In the present appeal, the veteran was not provided with notice of the type of evidence necessary to establish an initial disability rating or effective date, if benefits are awarded for the claimed disabilities on appeal. Accordingly, the case is REMANDED for the following action: 1. The AOJ must review the entire file and ensure for the issues on appeal that all notification and development necessary to comply with 38 U.S.C.A. §§ 5103(a) and 5103A (West 2002 & Supp. 2007) and 38 C.F.R. § 3.159 (2007)) is fully satisfied. The notification should address the veteran's claims for service connection, to include the requirements for secondary service connection, increased ratings and earlier effective dates. (a) The AOJ must send the veteran a corrective notice addressing the TDIU claim, that: explains the information or evidence needed to establish an effective date, if a higher disability rating is granted, as outlined by the Court in Dingess, supra. (b) The AOJ must also send the veteran a corrective notice addressing the service connection claim that includes: (1) an explanation as to the information or evidence needed to establish a disability rating and an effective date, if service connection is granted. (c) The notice regarding the service connection and TDIU issues must also (1) inform the veteran of what he needs to provide; (2) what information VA has or will provide; and (3) request or tell the veteran to provide any evidence in his possession that pertains to his claims. The claims file must include documentation that there has been compliance with the VA's duties to notify and assist a claimant as specifically affecting the issues on appeal. 2. Thereafter, the AOJ should schedule the veteran for an audiological examination and Ears, Nose and Throat (ENT) examination, by appropriate specialist(s), to determine the nature and etiology of the veteran's claimed hearing loss. The claims folder must be made available to the examiner prior to the examination, and the examiner should acknowledge such review of the pertinent evidence in the examination report. All indicated studies should be performed and all manifestations of current disability should be described in detail. The examiner should address the following: Does the veteran have any current, chronic hearing loss disability? If so, is it at least as likely as not that any current hearing loss disorder began in service, to include being caused or aggravated in service by acoustic trauma during combat related service? If not found to be related to inservice acoustic trauma, is it at least as likely as not that any current hearing loss disorder was caused or aggravated in service by any ear infections treated inservice? In answering this question, the examiner must address the treatment in service by an ENT for symptoms including nasopharyngitis in December 1943 as well as the continuity of ear infections treated from 1948 to the present. 3. Following completion of the above, the AOJ should schedule the veteran for a cardiovascular examination to determine the nature and etiology of the veteran's claimed coronary artery disease (CAD). The claims folder must be made available to the examiner prior to the examination, and the examiner should acknowledge such review of the pertinent evidence in the examination report. All indicated studies should be performed and all manifestations of current disability should be described in detail. The examiner should address the following: Does the veteran have any current, chronic cardiovascular disability, to include CAD? If so, is it at least as likely as not that any current cardiovascular disorder began in service, to include being caused or aggravated in service? If such disability did not begin in service is it at least as likely as not the disability is being caused or aggravated beyond natural progression by the veteran's service-connected varicose veins disorder? If the appellant's service-connected varicose veins disorder aggravated or contributed to or accelerated any pathologic process of any diagnosed cardiovascular disorder, the examiner must state to what extent, given in terms of a percentage, did it so contribute as compared to the natural progress of diagnosed cardiovascular disorder itself or as opposed to other possible contributing factors. The examiner is also requested to provide an opinion as to the veteran's unemployability. If the veteran is found to be unemployable, the examiner is requested to offer an opinion as to whether the unemployability is due to the service-connected varicose veins of the legs, or due to nonservice-connected disabilities. Each opinion should contain comprehensive rationale based on sound medical principles and facts. 4. Following completion of the above, the AOJ should re-adjudicate the veteran's claims. If any benefit sought on appeal remains denied, the veteran should be provided a supplemental statement of the case. The supplemental statement of the case must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and discussion of all pertinent regulations, to include consideration of 38 C.F.R. § 3.310 (2007) and Allen v. Brown, 7 Vet. App. 439 (1995), for the secondary service connection issue and consideration of 38 C.F.R. § 4.16(a) regarding the TDIU claim. An appropriate period of time should be allowed for response. Thereafter, the claims folder should be returned to the Board, if in order. The purposes of this remand are to comply with due process of law and to further develop the veteran's claim. No action by the veteran is required until he receives further notice; however, the veteran is advised that failure to cooperate by reporting for examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2007). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. The appellant has 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ A. BRYANT 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) (2007).