Citation Nr: 0811515 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 05-19 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an increased (compensable) disability rating for bilateral hearing loss. 2. Entitlement to an initial disability rating for left nephrolithiasis, in excess of zero percent prior to August 15, 2005; in excess of 20 percent from August 15, 2005 to November 30, 2005; and in excess of zero percent from December 1, 2005. 3. Entitlement to an increased (compensable) disability rating for colon polyps, status post polypectomy. 4. Entitlement to an increased disability rating for irritable bowel syndrome manifested by fecal incontinence, currently evaluated as 10 percent disabling. 5. Entitlement to restoration of a 20 percent disability rating for degenerative disc space disease, lumbar spine, L4- 5, status post lumbar diskectomy and laminectomy; to include entitlement to an increased disability rating in excess of 20 percent. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The veteran served on active duty from October 1982 to May 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona (RO). In pertinent part of a November 2004 rating decision, the RO continued the noncompensable ratings assigned for (1) bilateral hearing loss and for (2) colon polyps, status post polypectomy, and continued a 10 percent rating assigned for (3) fecal incontinence. In December 2004, the veteran initiated an appeal from that decision by filing a timely notice of disagreement with respect to all three of these service-connected disabilities' ratings that were continued in that decision. Afterwards, the RO issued a statement of the case as to the ratings for bilateral hearing loss and for colon polyps, status post polypectomy, and then the veteran perfected an appeal as to these two claims. The RO did not issue a statement of the case as to the claim for a higher rating for fecal incontinence (later identified as irritable bowel syndrome manifested by fecal incontinence). In the November 2004 rating decision, the RO also proposed to decrease from 20 to 10 percent the assigned disability rating for the veteran's degenerative disc space disease, lumbar spine, L4-5, status post lumbar diskectomy and laminectomy. Then in a March 2005 rating decision, the RO effectuated the decrease of the assigned rating from 20 to 10 percent, effective June 1, 2005. The veteran initiated an appeal later in July 2005 by filing a notice of disagreement within a VA Form 9 filed at that time. The RO has not issued a statement of the case on this claim. In a May 2006 rating decision, the RO granted service connection for left nephrolithiasis, which had been claimed as a left kidney stone. The RO assigned an initial rating of zero percent prior to August 15, 2005; 20 percent from August 15, 2005 to November 30, 2005; and zero percent from December 1, 2005. The veteran perfected an appeal as to the assigned initial ratings. There are two matters that require referral to the RO. First, in statements dated in October and November 2005 the veteran raised a claim for an increased rating for erectile dysfunction. Second, in a January 2008 statement by a VA physician, urology specialist, he noted that the veteran has developed a kidney stone in his right kidney since treatment in September 2007. Given that the veteran was previously granted service connection for left nephrolithiasis (the diseased condition associated with the presence of renal calculi), and that the evidence now shows a kidney stone in the right kidney, the record thereby raises an inferred claim for service connection for right nephrolithiasis. These matters are referred to the RO for appropriate action. In January 2008, the veteran testified before the undersigned at a Travel Board hearing at the RO. For the reasons expressed below, the matters on appeal are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action is required in properly developing the veteran's claims on appeal. During the January 2008 Travel Board hearing, the veteran testified that his hearing loss had worsened in severity since the most recent VA examination in July 2004, almost four years ago. He testified that since then he had noticed that his hearing acuity had worsened in the context of work, where he had mistaken sounds spoken to him. He indicated that others at work had noticed this as well. During the hearing the veteran also testified that his left nephrolithiasis-a service-connected kidney disability-had worsened since the VA genitourinary examination in March 2006. A recent statement in January 2008 from a VA physician also suggested that the left nephrolithiasis has worsened since the March 2006 examination, over two years ago. That physician noted that the veteran continued to be followed by the urology clinic every three to four months, and that in September 2007 the stones in the left kidney appeared to be larger in size. It is likely that there are VA medical records outstanding that are material to the claim and which should be obtained. Further in this regard, at the time of the January 2008 statement, the veteran was to return to the urology clinic in the near future for evaluation for extra- corporeal shock wave lithotripsy. Any pertinent records of ongoing VA treatment should be obtained. The veteran as a lay person is competent to report information of which he has personal knowledge, such as information that he can gather through his senses. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). The Board finds that the veteran is competent to attest to an extent as to whether his hearing loss and left nephrolithiasis, have worsened since the most recent examination for each; at least to the extent that he can acquire information on the change in severity of symptoms through his senses. The veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997) (holding that the veteran was entitled to a new examination after a two year period between the last VA examination and the veteran's contention that the pertinent disability had increased in severity); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Fulfillment of the VA's statutory duty to assist the appellant includes providing an additional VA examination by a specialist when indicated, conducting a thorough and contemporaneous medical examination, and providing a medical opinion, which takes into account the records of prior medical treatment, so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In a June 2004 claim, the veteran asserted that he was entitled to an increased rating in excess of the 20 percent rating then in effect for his service-connected lumbar spine disability. By way of a November 2004 rating decision, the RO proposed to decrease the rating for that disability. In a March 2005 rating decision, the RO reduced the rating from 20 to 10 percent, effective June 1, 2005. The veteran initiated an appeal from that decision by filing a notice of disagreement within a VA Form 9 submitted in May 2005. In effect, the veteran's disagreement was both as to the assigned rating of 20 percent before the reduction-claiming an increase, and as to the reduction. Following that notice of disagreement, the RO has not subsequently issued a statement of the case on this matter. Similarly, the RO has not issued a statement of the case on another claim following a notice of disagreement submission. After a November 2004 rating decision, in which the RO continued a 10 percent disability rating for the service- connected irritable bowel syndrome manifested by fecal incontinence (identified at that time as fecal incontinence), the veteran submitted a December 2004 notice of disagreement. In a February 2005 rating decision, the RO continued the 10 percent rating again but identified the disability as irritable bowel syndrome manifested by fecal incontinence. Regardless of how the disability is characterized, the veteran has submitted a notice of disagreement expressing dissatisfaction with the rating assigned. The RO has not subsequently issued a statement of the case on this matter in response to that notice of disagreement. By filing a notice of disagreement, the veteran initiated appellate review of the claims just discussed. The next step in the appellate process is for the RO to issue to the veteran a statement of the case summarizing the evidence relevant to each issue, the applicable legal authority, and the reasons that the RO relied upon in making its determination. See 38 C.F.R. § 19.29 (2006); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v Gober, 10 Vet. App. 433, 436 (1997). Consequently, the case must be remanded to the RO for the issuance of a statement of the case regarding the lumbar spine disability and irritable bowel syndrome manifested by fecal incontinence claims. To obtain appellate review of any issue not currently in appellate status, however, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2007). As the appellant has submitted a timely notice of disagreement regarding both of these increased rating claims, a remand is warranted in order to furnish the appellant a statement of the case on the two issues of: (1) Entitlement to restoration of a 20 percent rating for degenerative disc space disease, lumbar spine, L4-5, status post lumbar diskectomy and laminectomy; to include entitlement to an increased disability rating in excess of 20 percent; and (2) Entitlement to an increased disability rating for irritable bowel syndrome manifested by fecal incontinence, currently evaluated as 10 percent disabling. See Manlincon v. West, 12 Vet. App. 238 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). The claim of entitlement to an increased disability rating for irritable bowel syndrome manifested by fecal incontinence is inextricably intertwined with the claim of entitlement to an increased (compensable) disability rating for colon polyps, status post polypectomy. Both involve the gastrointestinal system and the RO has evaluated each under overlapping diagnostic code criteria in light of interrelated symptoms of involuntary bowel movements, bowel disturbance, and fecal leakage. As such, the Board finds that the colon polyps, status post polypectomy increased rating claim is inextricably intertwined with the irritable bowel syndrome manifested by fecal incontinence issue. Therefore a decision by the Board on the veteran's colon polyps, status post polypectomy claim would at this point be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). In this regard, with respect to the two service-connected digestive system disabilities, the initial instructions under 38 C.F.R. § 4.114 (2007) must be considered in evaluating the digestive system, including whether a single evaluation should be assigned under 38 C.F.R. § 4.114. Accordingly, the case is REMANDED for the following action: 1. Obtain any VA treatment records not on file pertaining to any of the disabilities subject to this REMAND. 2. Schedule the veteran for VA audiologic and genitourinary examinations for compensation and pension purposes, to determine the nature and severity of the veteran's bilateral hearing loss and left nephrolithiasis, respectively. Make the claims file available to the respective examiners, who should review the claims folders in conjunction with the examinations. The examiners should note such review in the examination reports. All studies deemed appropriate in the medical opinion of each examiner should be performed, and all findings should be set forth in detail. The examiners should each include in their examination report the rationale for any opinion expressed. If an examiner determines that it is not feasible to respond to any of the inquiries below, the examiner should explain why it is not feasible to respond. A. VA audiologic examination The VA audiologic examination must be conducted by a state-licensed audiologist. Examination of hearing impairment should be conducted without the use of hearing aids. The examination must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. See 38 C.F.R. § 4.85(a). For each ear, pure tone audiometric thresholds, in decibels, should be recorded for each of the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz, as well as controlled speech discrimination testing (Maryland CNC) (reported in percentages of discrimination). B. Genitourinary Examination The VA genitourinary examination must be conducted by an appropriate specialist physician to determine the current nature and extent of the veteran's service- connected left nephrolithiasis. The examiner should discuss all residuals found, such as any (1) associated hydronephrosis symptoms and required treatment (diet therapy, drug therapy, invasive or non-invasive procedures (including frequency)); (2) hydronephrosis, including any associated symptoms such as colic (including frequency), required catheter drainage, infection, and kidney impairment; (3) renal dysfunction symptoms; (4) any voiding dysfunction (urine leakage symptoms and treatment requirements), incontinence, requiring wearing a pad (including frequency); (5) urinary frequency-daytime voiding interval, and number of awakenings at night to void; and/or (6) obstructed voiding symptoms. 3. The RO should provide the veteran and his representative a statement of the case as to the issues of: (i) Entitlement to restoration of a 20 percent rating for degenerative disc space disease, lumbar spine, L4-5, status post lumbar diskectomy and laminectomy; to include entitlement to an increased disability rating in excess of 20 percent; and (ii) Entitlement to an increased disability rating for irritable bowel syndrome manifested by fecal incontinence, currently evaluated as 10 percent disabling. The veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of each issue he wishes to appeal to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, a claim should not be certified to the Board. If so filed, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. 4. Concurrent with the RO's actions with respect to the claim involving the appropriate rating for irritable bowel syndrome manifested by fecal incontinence, and any additional development deemed appropriate by the RO, the RO should readjudicate the claim for an increased rating for colon polyps, status post polypectomy. With respect to the two service-connected digestive system disabilities, the RO should consider the initial instructions under 38 C.F.R. § 4.114 (2007) in evaluating the digestive system symptomatology, including whether a single evaluation should be assigned for ratings under 38 C.F.R. § 4.114. 5. Following any additional development deemed appropriate by the RO, the RO should readjudicate the claims on appeal. If a determination remains unfavorable to the appellant, the RO should furnish the veteran and his representative a supplemental statement of the case and afford the applicable time period during which the veteran can respond. Thereafter, the RO should return the case to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655. These claims 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. 2006). _________________________________________________ DENNIS F. CHIAPPETTA 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).