Citation Nr: 1201331 Decision Date: 01/12/12 Archive Date: 01/20/12 DOCKET NO. 06-30 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE 1. Entitlement to service connection for bilateral numbness of the lower legs, to include as secondary to degenerative joint disease of the left hip status post left total hip replacement. 2. Entitlement to a compensable rating for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2005 and March 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The issue of entitlement to a compensable evaluation for left ear hearing loss was previously before the Board in April 2009 when it was deferred as inextricably intertwined with a claim of entitlement to service connection for right ear hearing loss that was remanded for the issuance of a Statement of the Case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran was issued a SOC regarding entitlement to service connection for right ear hearing loss in May 2009; however, the Veteran did not file a timely Substantive Appeal regarding this issue and, therefore, the claim is not before the Board for consideration. As such, the issue of entitlement to a compensable evaluation for left ear hearing loss is now before the Board for adjudication. In July 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge regarding the issue of entitlement to service connection for bilateral numbness of the lower legs, to include as secondary to degenerative joint disease of the left hip status post left total hip replacement. A transcript of this hearing is associated with the claims folder. The Board notes that the issue of entitlement to an evaluation in excess of 10 percent disabling for bilateral pes planus was certified for appeal to the Board in September 2010. However, the Veteran's substantive appeal on a VA Form 9, dated in September 2009, identified the above indicated issue as the only issue on appeal and excluded the issue of entitlement to an evaluation in excess of 10 percent disabling for bilateral pes planus. The Veteran's representative submitted argument regarding the issue of entitlement to an evaluation in excess of 10 percent disabling for bilateral pes planus in September 2010. This argument was submitted too late to be considered a timely substantive appeal. See 38 C.F.R. § 20.303 (2011). At the hearing before the undersigned Veterans Law Judge, it was noted that the VA Form 9 did not perfect the issue of entitlement to an increased rating for pes planus and that the Veteran and his representative could consider whether they wanted to file a new claim for an increased rating for pes planus. The Board acknowledges the recent decision of the United States Court of Appeals for Veterans Claims (Court) in Percy v. Shinseki, 23 Vet. App. 37 (2009) which held that the 60-day period in which to file a substantive appeal is not jurisdictional, and thus VA may waive any issue of timeliness in the filing of a substantive appeal. In that case, by treating a disability rating matter as if it were part of the Veteran's timely filed substantive appeal for more than five years, VA had waived any objections it might have had to the timeliness of the appeal with respect to the matter. However, unlike the claimant in Percy, the VA has not "consistently treated this matter as if it was part of the timely filed Substantive Appeal." Percy v. Shinseki, 23 Vet. App. 37, 46 (2009). Other than the VA Form 8 Certification of Appeal dated in September 2010, there is no reference to a continued claim of entitlement to an evaluation in excess of 10 percent disabling for bilateral pes planus subsequent to the Statement of the Case. The Board notes the RO did not issue a Supplemental Statement of the Case (SSOC) or otherwise readjudicate the claim since the August 2009 SOC. In addition, the Board notes that the Veteran's Law Judge who took the Veteran's testimony regarding the issue indicated on the front page of this decision did not acknowledge that the matter of entitlement to an evaluation in excess of 10 percent disabling for bilateral pes planus or take any testimony on this issue. Id. Accordingly, the Board concludes that this case may be distinguished from Percy, and that the issue of entitlement to an evaluation in excess of 10 percent disabling for bilateral pes planus is not before the Board for consideration. The issues of entitlement to service connection for a back disability and entitlement to service connection for a right hip disability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for bilateral numbness of the lower legs, to include as secondary to degenerative joint disease of the left hip status post left total hip replacement. The Veteran's accredited representative requested at the hearing before the undersigned Veterans Law Judge that the claim be remanded for additional pertinent VA treatment records to be obtained and associated with the claims file. Review of the claims file reveals that the Veteran was scheduled for an electromyography in late August 2009; however, the results of this examination and treatment records dated subsequent to August 2009 are not associated with the claims file. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2011). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, attempts should be made to obtain VA clinical records pertaining to the Veteran's treatment that are dated since August 2009. The Board notes that to date the Veteran has not been afforded a VA medical examination regarding the etiology of his bilateral numbness of the lower legs. Under 38 U.S.C.A. § 5103A(d)(2), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran contends that he has bilateral lower extremity numbness and that the disabilities are associated with his service-connected left hip degenerative joint disease status post left total hip replacement. Treatment records reveal that the Veteran has been diagnosed with lower extremity neuropathy and radiculopathy. In addition, the Veteran has been diagnosed with chronic back pain and has been noted to have grade I anterolisthesis of L5 on S1 with bilateral pars defects and moderate bilateral foraminal narrowing, bone marrow edema adjacent to the L3-4 disc space, moderate facet hypertrophic degenerative changes at L3-4 and L4-5, and moderate right sided foraminal narrowing at L3-4 and L4-5 by magnetic resonance imaging (MRI) examination. As such, the Board finds it necessary to afford the Veteran a VA medical examination to determine the etiology of the Veteran's bilateral lower extremity numbness. The Veteran seeks entitlement to a compensable evaluation for left ear hearing loss. In September 2005 the Veteran was afforded a VA Compensation and Pension hearing examination. The Veteran reported that he served as a phone linesman/classified carrier assigned to an artillery unit in Vietnam. He stated that he was exposed to noise from combat, M14 fire, and C130 aircraft. The Veteran had occupational noise exposure in a saw mill for 33 years. He reported hunting in the past and woodworking. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 25 45 70 75 Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The Veteran was diagnosed with severe high frequency sensorineural hearing loss. The Veteran underwent private audiology testing in October 2005. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 30 60 75 80 Word discrimination was noted to be 92 percent in both ears but there is no indication that the testing was performed pursuant to Maryland CNC. As the private examination report, dated in October 2005, reveals that the Veteran's hearing loss has become more severe since his September 2005 VA examination, the Board finds it necessary to afford the Veteran a contemporaneous VA examination to assess the current nature, extent and severity of his left ear hearing loss. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). In addition, it has been over six years since the Veteran was last afforded a VA medical examination regarding the severity of his left ear hearing loss and additional relevant evidence may be associated with the claims file pursuant to this remand. The VA's duty to assist includes the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As such, the Board finds that the Veteran must be afforded a contemporaneous VA medical examination regarding the severity of his left ear hearing loss. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain complete VA medical records pertaining to the Veteran, including those that are dated subsequent to August 2009. Any additional pertinent records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Thereafter, arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any bilateral numbness of the lower legs found to be present. The claims folder should be made available to and reviewed by the examiner. The examiner should indicate in his/her report whether or not the claims file was reviewed. All indicated studies should be performed, and all findings should be reported in detail. The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any bilateral numbness of the lower legs found to be present is related to or had its onset during service. If not, the examiner should opine as to whether it is at least as likely as not that any bilateral numbness of the lower legs found to be present is secondary to or aggravated by the service-connected degenerative joint disease, left hip status post left total hip replacement. In addition, the examiner should opine as to whether it is at least as likely as not that any bilateral numbness of the lower legs found to be present is secondary to or aggravated by any back disability found to be present is related to or had its onset in service. If not, the examiner should opine as to whether it is at least as likely as not that any back disability found to be present is secondary to or aggravated by the Veteran's service-connected degenerative joint disease, left hip status post left total hip replacement. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. Thereafter, the Veteran should be afforded an appropriate VA examination to determine the nature, extent and severity of his left ear hearing loss. The claims folder should be made available to and reviewed by the examiner. All indicated tests, including an audiological evaluation, must be performed. The results should conform to VA regulations governing evaluation of hearing loss. The examiner should also fully describe the functional effects of the Veteran's hearing loss disability. The examiner should set forth a complete rationale for all findings and conclusions in a legible report. 4. Thereafter, readjudicate the Veteran's claims. If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. 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. 2011). _________________________________________________ MILO H. HAWLEY 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) (2011).