Citation Nr: 1304359 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 09-46 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for muscle damage of the abdomen claimed as a residual of a service-connected appendectomy. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to a compensable evaluation for a scar claimed as a residual of a service-connected appendectomy, on appeal from an initial grant of service connection. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty in the US Army from February 1979 to February 1984. This matter comes before the Board of Veterans Appeals, hereinafter the Board, on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), located in Atlanta, Georgia. In that action, the RO granted service connection for a scar as a residual of an appendectomy and assigned a noncompensable evaluation for said disability. Service connection was also denied for bilateral hearing loss and muscle injury due to an appendectomy. The appellant was notified of that action and he has appealed. Following the perfection of his appeal, the appellant provided testimony before the undersigned Veterans Law Judge via a videoconference hearing in December 2012. A transcript of that hearing has been prepared. 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 As reported above, the appellant has come before the Board asking that his service-connected appendectomy scar be assigned a compensable rating. The appellant has indicated through his testimony before the Board, that the scar has become more severely disabling since last being examined in July 2008. For example, at his hearing, he noted that the scar was tender when his clothing rubbed against it. There was no indication of any tenderness at the prior VSA examination in July 2008. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The United States Court of Appeals for Veterans Claims, hereinafter the Court, has held that when an appellant alleges that his/her service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (an appellant is entitled to a new examination after a two-year period between the last VA examination and the appellant's contention that the pertinent disability has increased in severity). The Court has held that when an appellant claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In this instance, the most recent complete skin examination of the scar occurred over four years ago. Hence, under the circumstances, the Board is of the opinion another VA examination should be scheduled to determine the current level of the appellant's appendectomy scar residual. The other two issues on appeal involve entitlement to service connection. The appellant has averred that as a result of his in-service appendectomy he now suffers from muscle injury residuals of the abdominal muscles where the surgery occurred. He further maintains that as a result of the noise exposure he endured while on active duty, he now has bilateral hearing loss that he believes is the result of the noise exposure. The VA's duty to assist the appellant in the development of his or her claim includes the providing of a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The record reflects that a VA examiner has not commented on the assertions earnestly made by the appellant; i.e., that he now suffers from conditions he believes are service-related or were caused by or related to his service-connected disabilities. With respect to the muscle damage claim, while the Veteran was afforded a VA examination in July 2008 to evaluate the residual scar from his appendectomy, there was no consideration of whether any muscular damage (as opposed to merely symptoms limited to the scar itself) was present. Thus, an examination should be afforded on this issue. Moreover, while a hearing loss examination was undertaken in July 2008, the hearing testimony provided in December 2012 indicates that the appellant's auditory acuity has worsened since that time. As he did not previously have a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, another examination should be afforded to determine whether he now meets such standard. Also, because the claim is being returned for additional development, copies of any available VA and private medical records subsequent to July 2010 should be obtained and incorporated in the claims file. It is important to note 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 that 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, these private and VA treatment records should be associated with the claims file. The actions identified herein are consistent with the duties imposed by the VCAA. However, identification of specific action requested on remand does not relieve the AMC of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the action requested above, the AMC should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Therefore, to ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claims, the case is REMANDED to the AMC for the following development: 1. The AMC must the entire claims folder and ensure that all notification and development necessary to comply with 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159 (2012) are fully complied with and satisfied as to the issue now on appeal. The claims folder must include documentation that there has been compliance with the VA's duties to notify and assist a claimant as set forth in the VCAA as specifically affecting the issues on appeal. 2. The AMC should contact the appellant and ask that he furnish signed authorizations for release to the VA of government and private medical records produced since July 2010 in connection with each non-VA source identified. Copies of the medical records from all sources, including VA records, (not already in the claims folder) should then be requested. Any response received should be memorialized in the appellant's claims folder. All records obtained should be added to the claims folder. If requests for any private treatment records are not successful, the AMC should inform the appellant of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. See 38 C.F.R. § 3.159(e) (2012). 3. Only after all of the appellant's private and VA medical records have been obtained and included in the claims folder for review, the AMC should schedule the appellant for a dermatological/skin examination. The purpose of the examination is to obtain readings concerning the severity of the appellant's service-connected appendectomy scar. The AMC should arrange for the appellant to be examined by an appropriate dermatological specialist, who (if possible) has not previously examined him. The claims folder and a copy of this remand are to be made available to the examiner to review prior to the examination. Any indicated tests and studies should be conducted and all findings should be reported in detail. Unretouched color photographs of the abdomen should be accomplished and those photographs should be included in the claims folder for further review. Additionally, the written findings should include information about whether the scar: (a) is tender and painful, if superficial; (b) is poorly nourished with repeated ulceration, if superficial; (c) the size of the scar and whether it is "deep" (that is, associated with underlying soft tissue damage). (d) is/are superficial and "unstable" (that is, there is frequent loss of covering of skin over the scar), (e) is superficial and painful on examination; and, (f) has produced limitation of function, and if so, what limitation of function (e.g., limitation of motion, neurological impairment or pain with use.) A complete rationale for any opinion expressed should be included in the examination report. The claims folder and this Remand must be made available to the examiner for review before the examination. The results proffered by the examiner must reference the complete claims folders and any inconsistent past diagnoses given. It is further requested that the examiner specifically comment on the appellant's complaints of tenderness, restrictions of movement, or soreness of the scar in question. Also, it is requested that the results of the examination be typed or otherwise recorded in a legible manner for review purposes. 4. Only after all of the appellant's private and VA medical records have been obtained and included in the claims folder for review, the AMC should schedule the appellant for an audiological examination. The claims folder should be provided to the examiner for review in conjunction with the examination. If possible, the examination should not be performed by an individual who has previously examined the appellant. After reviewing the file, the examiner must state whether the appellant reports a continuity of hearing problems (hearing loss and tinnitus) since service and acknowledge such statements made by the appellant, if any, in offering the opinion. If the appellant does not have a bilateral hearing loss disability as contemplated by 38 C.F.R. § 3.385 (2012), the examiner should indicate as such. The examiner should then render an opinion as to whether it is at least as likely as not that the appellant's purported bilateral hearing loss is related to his service. 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 must provide a comprehensive report including rationales for all opinions and conclusions, citing the objective medical findings leading to the examiner's conclusions. If further testing or examination by specialists is required to evaluate the claimed disability, such testing or examination is to be done before completion of the examination report. The results proffered by the examiner must reference the complete claims folders and any inconsistent past diagnoses given and must contain a clear rationale in support of all opinions provided. The examiner must specifically discuss the appellant's contentions and his report of purported chronicity of symptoms since he was discharged from service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). The examiner should not invoke the phrase "without resort to mere speculation" without first explaining the basis for such an opinion. That is, if the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination, for example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available, that would permit an opinion. If so, a qualified examiner should provide an opinion and/or the additional testing should be accomplished. If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether a specific in-service injury or disease can possibly cause the claimed condition(s), or the actual cause cannot be selected from multiple potential causes, this should be fully explained. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). 5. Only after all of the appellant's private and VA medical records have been obtained and included in the claims folder for review, the AMC should schedule the appellant for a VA muscle examination of the abdomen. The claims folder and a copy of this remand are to be made available to the examiner to review prior to the review. The examiner should be requested to review the claims folder and state that this has been accomplished in the examination report. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. More specifically, the appellant should undergo a magnetic resonance imaging (MRI) scan of the abdomen and those results should be included in the claims file. The examiner must specifically annotate in the record that he/she has reviewed all of the medical evidence in the claims folder. As stated, the appropriate examiner should express an opinion as to whether the appellant now suffers from a muscle injury of the abdomen. If he does, the examiner should also opine as to whether the found disability is at least as likely as not (a probability of 50 percent or greater) related or secondary to the appellant's appendectomy. That is, does the appellant now suffer from a muscle injury of the abdomen that can be etiologically linked to the surgery that was accomplished to remove his appendix? 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 must provide complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the provided conclusions. The examiner must specifically discuss the appellant's contentions and his report of purported chronicity of symptoms since he was discharged from service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). The examiner should not invoke the phrase "without resort to mere speculation" without first explaining the basis for such an opinion. That is, if the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination, for example, does the examiner lack the expertise to render such an opinion, or is some additional testing or information needed, and possibly available, that would permit an opinion. If so, a qualified examiner should provide an opinion and/or the additional testing should be accomplished. If the examiner cannot provide an opinion because it cannot be determined from current medical knowledge whether a specific in-service injury or disease can possibly cause the claimed condition(s), or the actual cause cannot be selected from multiple potential causes, this should be fully explained. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). 6. The AMC should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the reports of examinations. If the requested report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012); see also Stegall v. West, 11 Vet. App. 268 (1998). 7. After conducting all additional development requested, the AMC should readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the appellant and his accredited representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The purpose of the examinations requested in this remand is to obtain information or evidence (or both), which may be dispositive of the appeal. Therefore, the appellant is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by attending the requested VA examinations may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ ERIC S. LEBOFF 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).