Citation Nr: 1311477 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 09-34 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss. 2. Entitlement to an initial compensable rating for nephrolithiasis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from April 1958 to March 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In September 2012, the Veteran testified at a video conference hearing before the undersigned. A transcript of the hearing is of record. In September 2012, the Veteran submitted additional evidence in the form of a September 2012 private medical report. He waived initial RO consideration of the newly submitted evidence. Subsequently, in January 2013, the Veteran again submitted additional evidence in the form of private and VA medical records dated from October 2012 to January 2013. He also waived initial RO consideration of this evidence. See 38 C.F.R. § 20.1304 (2012). 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 Additional development is needed prior to further disposition of the claims. The Veteran was last afforded a VA examination for his bilateral hearing loss in May 2012. He was last afforded a VA examination for his nephrolithiasis in April 2012. With respect to his hearing loss, the Veteran reported that he had no hearing whatsoever in his left ear despite wearing a hearing aid. He also submitted a September 2012 medical report from a private otologist, Dr. J.M., in which the otologist found that the Veteran had asymmetric hearing loss that was worse on the left side. The otologist noted that the severity of the hearing loss was moderate and was a definite problem. He also found that the Veteran could communicate without much difficulty but that he had problems in large groups. He noted that the Veteran's hearing loss was slowly getting worse. However, no audiometric findings were included in the September 2012 private medical report. Accordingly, the Board finds that on remand, the RO/AMC should request that the Veteran's private otologist, Dr. J.M., provide audiometric results of the Veteran's September 2012 treatment session. Also, it must be determined whether the Veteran's otologist obtained speech discrimination scores using the Maryland CNC speech recognition test, and if so, these scores should be provided as well. Regarding his nephrolithiasis, the Veteran testified that he had increased left flank pain. He reported that although the April 2012 VA examiner had attributed the left flank pain to a mass on his adrenal gland, he had been advised by a doctor that his adrenal gland and pancreas symptoms actually resulted from his nephrolithiasis and residual scarring. Accordingly, the Board finds that a new examination is needed to fully and fairly evaluate the Veteran's claim for an increased initial rating. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Given the evidence outlined above, the Veteran should now be afforded a VA examination with a medical opinion addressing the issue of whether the Veteran's adrenal gland and pancreas disabilities are caused or aggravated by his service-connected nephrolithiasis. Additionally, the Veteran indicated at his September 2012 hearing that he had undergone surgery for his adrenal gland in February 2010. A January 2013 private medical record also indicates that the Veteran had undergone surgery in March 2012 for pancreatic neoplasm. It does not appear that the treatment records from these medical procedures have been associated with the claims file. Relevant ongoing VA medical records should also be obtained on remand. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, both VA and private, who have treated him for his nephrolithiasis and claimed related problems since 2010, including the private medical providers who performed surgery on his adrenal gland in February 2010 and performed surgery for his pancreatic neoplasm in March 2012. After securing any necessary releases, the RO/AMC should request any records identified which are not duplicates of those contained in the claims file. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. In addition, obtain all relevant ongoing VA treatment records dating since November 2006 from the VA Medical Centers in Phoenix, Arizona, and Marion, Illinois. 2. Request that the Veteran's private otologist, Dr. J.M., provide audiometric results in decibels of the Veteran's September 2012 treatment session. If it is determined that speech discrimination scores using the Maryland CNC speech recognition test were also obtained at the September 2012 treatment session, these scores should be provided as well. 3. Schedule the Veteran for an appropriate examination to determine the current severity of his nephrolithiasis and the claimed associated adrenal gland and pancreas disabilities. The examiner must review the claims folder. All indicated tests should be performed and the results reported. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current adrenal gland or pancreas problems including scarring were caused by or related to his service-connected nephrolithiasis, including residual scarring. If not caused by or related to the Veteran's service-connected nephrolithiasis, including residual scarring, the examiner should provide an opinion as to whether the Veteran's adrenal gland or pancreas problems, including scarring are aggravated (permanent worsening of the underlying disability beyond natural progress) by the nephrolithiasis, including residual scarring. If aggravation by a service-connected disability is found, then the examiner should quantify the degree of such aggravation, if possible. A rationale for any opinion expressed should be provided. 4. After the development requested above has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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. 2012). _________________________________________________ TANYA A. SMITH Acting 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).