Citation Nr: 0813408 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 05-39 124 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for left ear mastoidectomy. 2. Entitlement to an initial compensable rating for left ear hearing loss. 3. Entitlement to an initial rating in excess of 10 percent for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Associate Counsel INTRODUCTION The veteran served on active duty from November 1968 to August 1969. The present matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision in which the RO denied the veteran's claim for a higher rating for mastoidectomy and left ear hearing loss. In December 2004, the veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in November 2005, and the veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that same month. In a February 2006 supplemental SOC (SSOC), the RO continued the denial of a rating in excess of 10 percent for mastoidectomy and left ear hearing loss. In August 2006, the appellant testified during a hearing before the undersigned Veterans Law Judge held at the RO; a transcript of that hearing is of record. In November 2006, the Board remanded this matter to the RO (via the Appeals Management Center (AMC), in Washington, D.C.) for further action, to include scheduling an examination by an otolaryngologist, obtaining additional medical records, and determining whether separate ratings for any residuals of the veteran's left ear mastoidectomy are warranted. After undertaking some of the requested action, the RO, in an October 2007 rating decision, granted service connection for left ear hearing loss as secondary to service- connected mastoidectomy of the left ear, with an award of a noncompensable rating, effective February 9, 2004; and also granted service connection for tinnitus, with an award of a 10 percent rating, effective February 9, 2004. As these two claims on appeal involve a request for a higher initial rating following the grant of service connection, the Board has characterized these issues on appeal in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disabilities). In a November 2007 SSOC, the RO continued the denial of the claim for a rating in excess of 10 percent for left ear mastoidectomy. For the reasons expressed below, these matters are being remanded to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant when further action, on his part, is required. REMAND Unfortunately, the Board's review of the claims file reveals that additional RO action on these claims is warranted, even though such action will, regrettably, further delay an appellate decision on the claims on appeal. A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In its November 2006 remand, the Board requested that the veteran be examined by an otolaryngologist who would specifically identify and provide comment as to the existence and extent of all current residuals of the veteran's in- service left radical mastoidectomy-to particularly include hearing loss, tinnitus, ear infections, and/or dizziness. The examiner was supposed to specify whether any dizziness experienced by the veteran was due to labrynthitis; and, if so, whether such condition was a current residual of the in- service mastoidectomy. The Board notes that the August 2007 VA examination was conducted not by an ear, nose and throat physician, but by a physician whose specialty is family medicine. His report noted dizziness and tinnitus were subjective complaints that could not be measured with any certainty and that the veteran had no evidence of current infection. The examiner did not offer an opinion on whether the veteran had any residuals from his in-service left mastoidectomy, including hearing loss and whether any dizziness was due to labrynthitis. Further, no hearing loss evaluation was conducted. In its October 2007 rating decision, the RO noted that the issues of ear infections and dizziness would be addressed in a separate decision, but no such decision on other possible residuals of the veteran's left ear mastoidectomy are found in the claims file. Hence, the RO should arrange for another VA examination by an otolaryngolist (ear, nose and throat physician) to undertake the examination requested in the November 2006 remand in order to resolve the veteran's original claim for a higher rating for mastoidectomy and left ear hearing loss. The veteran is hereby notified that failure to report to any scheduled examination, without good cause, shall result in a denial of the claim for an increased rating. See 38 C.F.R. § 3.655(b) (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the veteran fails to report to any scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. Prior to the VA examination, the RO should obtain and associate with the claims file all pertinent, outstanding VA medical records from the South Texas Healthcare System. The claims file currently includes outpatient treatment records from the Audie Murphy VA Medical Center (VAMC) (up to September 2007) and from the Frank Tejeda VA Outpatient Clinic in San Antonio, Texas (up to August 2007). The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain and associate with the claims file any additional pertinent medical records from the above-noted facilities. As noted above, in an October 2007 rating decision, the RO, on remand from the Board's previous November 2006 decision, granted service connection for left ear hearing loss and awarded a noncompensable rating, effective February 9, 2004, and granted service connection for tinnitus and awarded a 10 percent rating, effective February 9, 2004. In November 2007, the veteran expressed disagreement with the initial ratings assigned. Although a NOD has been filed with the October 2007 awards of a noncompensable rating for left ear hearing loss and a 10 percent rating for tinnitus, the RO has yet to issue a SOC with respect to those claims, the next step in the appellate process. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, these two matters must be remanded to the RO for the issuance of an SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. Further, to ensure that due process requirements are met and that the record before the examiner is complete, the RO should also give the appellant another opportunity to present information and evidence pertinent to the claims on appeal, notifying him that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2007) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year VCAA notice period). The RO should request that the appellant submit all evidence in his possession, and ensure that its letter to him meets the notice requirements of the decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), as appropriate. The United States Court of Appeals for Veterans Claims (Court) has also recently held that, in rating cases, VA must notify the claimant that, to substantiate a claim for an increased rating: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The RO should ensure that its letter to the appellant meets the notice requirements of the decision in Vazquez-Flores as it pertains to the veteran's claim for a rating in excess of 10 percent for left ear mastoidectomy, and to his claims for initial higher ratings for any residuals of his left ear mastoidectomy. After providing the appropriate notice, the RO should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2007). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The Board also points out that, as any decision with respect to the claim for an initial compensable rating for left ear hearing loss, the claim for an initial rating in excess of 10 percent for tinnitus, and still unadjudicated claims for other residuals of left ear mastoidectomy, such as dizziness, may affect the veteran's claim for a higher rating for left ear mastoidectomy, the claim for a rating in excess of 10 percent for left ear mastoidectomy is inextricably intertwined with these other claims. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for another issue). As all the claims cited herein arise from the veteran's February 2004 claim for an increase for his service-connected mastoidectomy and left ear hearing loss, they all should be considered together; any Board action on the claim for a higher rating for left ear mastoidectomy, at this juncture, would be premature. Hence, a remand of this matter is warranted, as well. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain from the South Texas Healthcare System copies of all outstanding records of evaluation and/or treatment of the veteran's residuals of left ear mastoidectomy. The RO should specifically obtain outstanding records from the Audie Murphy VAMC (from September 2007 to the present) and from the Frank M. Tejeda Outpatient Clinic in San Antonio, Texas (from August 2007 to the present). The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should send to the appellant and his representative a letter requesting that the appellant provide sufficient information, and if necessary, authorization to enable it to obtain any additional pertinent evidence not currently of record. The RO should also invite the appellant to submit all pertinent evidence in his possession, and ensure that its letter meets the requirements of Dingess/Hartman and Vazquez-Flores (cited to above), as appropriate. The RO's letter should clearly explain to the appellant that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the appellant responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the appellant and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all available records are associated with the claims file, the RO should arrange for the veteran to undergo VA examination by an otolaryngologist (ear, nose, and throat physician) at an appropriate medical facility. The veteran's entire claims file, to include a complete copy of this REMAND, must be provided to the physician designated to examine the veteran, and the examination report should include discussion of the veteran's documented medical history and assertions. All appropriate tests and studies (to include audiometry and speech discrimination testing, if warranted) should be accomplished (with all findings made available to the requesting physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The examiner should specifically identify, and provide comment as to the existence and extent (or frequency, as appropriate) of all current residuals of in-service left radical mastoidectomy-to particularly include hearing loss, tinnitus, ear infections, and/or dizziness. The examiner should specify whether any dizziness experienced by the veteran is due to labrynthitis; and, if so, whether such condition is a current residual of the in-service mastoidectomy. The physician should set forth all examination findings, together with the complete rationale for the comments expressed, in a printed (typewritten) report. 5. If the veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO must furnish to the veteran and his representative a SOC with respect to the October 2007 award of an initial noncompensable rating for left ear hearing loss and the award of an initial 10 percent rating for tinnitus, along with a VA Form 9, and afford them the appropriate opportunity to submit a substantive appeal perfecting an appeal on these issues. Further, after the RO has determined all claims for any residuals of the veteran's left ear mastoidectomy, it should readjudicate the claim for a rating in excess of 10 percent for left ear mastoidectomy. If the veteran fails, without good cause, to report to the scheduled examination, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO should adjudicate the claim in light of all pertinent evidence and legal authority, to specifically include Diagnostic Code 6200 and the note following that diagnostic code. 8. The veteran and his representative are hereby reminded that to obtain appellate review of any matter not currently in appellate status, such as the claim for an initial compensable rating for left ear hearing loss and the claim for an initial rating in excess of 10 percent for tinnitus, a timely appeal must be perfected within 60 days of the issuance of the SOC. 9. If the claim for a rating in excess of 10 percent for left ear mastoidectomy remains denied, the RO must furnish to the veteran an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and afford the veteran the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ 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 the appeal. 38 C.F.R. § 20.1100(b) (2007).