Citation Nr: 1302832 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 10-36 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial compensable evaluation for service-connected left ear hearing loss disability. 2. Entitlement to an initial compensable evaluation for service-connected perforated tympanic membrane with scarring and pain in the left ear. 3. Entitlement to a 10 percent rating based on multiple, noncompensable, service-connected disabilities under 38 C.F.R. § 3.324 (2012). REPRESENTATION Veteran represented by: Robert C. Brown, Jr., Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 31, 1962, to May 18, 1962. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In an April 2009 rating decision, the RO granted service connection for left ear hearing loss and assigned a non-compensable evaluation, effective June 23, 2005. Then, in an April 2010 rating decision, the RO granted service connection for perforated tympanic membrane with scarring and pain in the left ear, and assigned a non-compensable evaluation, effective May 15, 2007; and denied entitlement to a 10 percent rating based on multiple, noncompensable, service-connected disabilities under 38 C.F.R. § 3.324. In October 2011, the Veteran presented testimony in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder Also in October 2011, the Veteran submitted additional evidence in support of his claims. He specifically indicated that he was waiving consideration of the evidence by the agency of original jurisdiction (AOJ) in the first instance. However, as the claims must be remanded, the AOJ will also have an opportunity to consider this evidence. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal that the Board is adjudicating in this decision. In the April 2010 notice of disagreement to the April 2010 rating decision, the Veteran appears to raise claims to reopen service connection for right ear hearing loss and tinnitus. These issues 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 Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2012). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Veteran contends that the current noncompensable disability evaluations assigned for his left ear hearing loss disability and perforated tympanic membrane with scarring and pain in the left ear do not accurately reflect the severity of the disorders. The Veteran was last afforded an examination for his disabilities in April 2007, the report of which reflects that Veteran's main complaints were that his hearing disability made speech sound like it was "coming through a broken speaker" and of dizziness when rising quickly. During his October 2011 hearing, he testified that when he walked into a room, he could not understand what others around him were saying. See October 2011 Hearing Transcript, page 29. Additionally, in an October 2011 letter, J.W. Ellis, M.D. noted that the Veteran was unable to understand people without looking right at them. Furthermore, both Dr. Ellis and the Veteran indicated that in the last two years he had such severe dizziness that he went to the emergency room (e.g. April 2010). Id. at 20. The Veteran and his son also stated that he had itching in the ear and throat, he coughed frequently, and had pressure and pain in the ear. Id. at 23. The United States Court of Appeals for Veterans Claims (Court) has held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As the current level of disability is at issue and the evidence indicates a possible worsening of symptoms, a contemporaneous examination of the Veteran's left ear hearing loss disability and perforated tympanic membrane is necessary to accurately assess his disability picture. Specifically as to the Veteran's perforated tympanic membrane with scarring and pain in the left ear, the Board notes that the Veteran is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6211 (2012). A noncompensable evaluation is the only, and therefore the maximum, rating available under Diagnostic Code 6211. Consequently, the Veteran is not entitled to an increased rating for his disability under those criteria. However, under 38 C.F.R. § 4.87, Diagnostic Code 6204 (2011), for rating peripheral vestibular disorders, a 10 percent rating is assignable for manifestation of occasional dizziness. A 30 percent rating is to be assigned when there is dizziness and occasional staggering. A note to the rating criteria provides that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined. Based on the evidence as to the Veteran's dizziness, the Board finds that the examination on remand must address whether the Veteran's service-connected disability results in vestibular disequilibrium. Finally, as the Veteran's claim for entitlement to a 10 percent rating based on multiple, noncompensable, service-connected disabilities is inextricably intertwined with her claims for increase, these matters will be addressed together on remand. Harris v. Derwinski, 1. Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following actions: 1. Request that the Veteran submit or identify any medical records relevant to his claims that are not already of record, including records pertaining to emergency room visits. If, after making reasonable efforts to obtain named non-VA records the RO is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Then, schedule the Veteran for an examination to determine the current severity and effect of his left ear hearing loss disability and perforated tympanic membrane with scarring and pain in the left ear on his occupational functioning and daily activities. All indicated tests should be conducted. The claims file must be made available to and reviewed by the examiner. In addition to objective test results, the examiner should: a) fully describe the functional effects caused by the left ear hearing loss disability and perforated tympanic membrane in his or her final report, including specifically the impact of any such effect on the Veteran's employability; and b) clearly describe the nature and degree of any impairment caused by the Veteran's bilateral perforated tympanic membranes. The examiner should indicate whether the Veteran's competent and credible complaints of dizziness are a manifestation of his service-connected left ear perforated tympanic membranes regardless of whether a diagnosis of vestibular disequilibrium is made. A report should be prepared and associated with the Veteran's VA claims folder. 3. Thereafter, readjudicate the claims for entitlement to an initial higher (compensable) rating for left ear hearing loss disability, entitlement to an initial higher (compensable) rating for perforated tympanic membrane with scarring and pain in the left ear; and entitlement to a 10 percent rating based on multiple, noncompensable, service-connected disabilities. If any benefit sought on appeal remains denied, issue a supplemental statement of the case to the Veteran and his attorney, and provide an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ S.S. Toth 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) (2012).