Citation Nr: 1313497 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 11-12 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to a rating in excess of 10 percent for a left wrist disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas which denied service connection for bilateral hearing loss; and, continued a 10 percent rating for the Veteran's service-connected left wrist disability. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on his part is required. REMAND Although the Board sincerely regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. In regards to the Veteran's bilateral hearing loss service connection claim, remand is required to obtain a VA audiological examination in order to ascertain the etiology of bilateral hearing loss. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311(2007). Here, a July 2010 VA audiological examination was conducted. Upon a review of the claims file and examination, the examiner opined that it was less likely than not that the Veteran's hearing loss was due to his military service, in part, because the 1966 service entrance and 1970 service separation examinations showed hearing within normal limits. This opinion, however, does not address whether any hearing loss was incurred in service, regardless of whether it was shown in service or on service separation. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993) (holding that if hearing loss as defined by 38 C.F.R. § 3.385 is not shown in service or at separation from service, service connection may still be established if medical evidence shows that it is actually due to incidents during service). Indeed, while in-service hearing loss as per VA standards was not shown, there appears to have been a threshold shift shown on service separation examination. Furthermore, mild hearing loss was documented on separation examination. Moreover, the Veteran's exposure to acoustic noise trauma has been conceded. As such, a new examination is required to ascertain the etiological relationship of the Veteran's bilateral hearing loss. In regards to the Veteran's left wrist claim, the Veteran contended in his substantive appeal that the current disability rating does not accurately reflect the current severity of his service-connected left wrist disorder. The Veteran reported that he experiences daily left wrist pain, a weakened grip, stiffness, and an inability to hold on to objects very long. The Veteran also reported that his left wrist disability prevents him from doing some of the things he used to be able to do. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the current rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). The Board notes that the most recent VA examination for his left wrist took place in June 2010; it has been almost three years since his last VA examination. Therefore, the Veteran should be afforded a new VA examination to determine the current severity of his left wrist disability. 38 C.F.R. § 3.159(c)(4) (2012); Green v. Derwinski, 1 Vet. App. 121 (1991) (duty to assist may include conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one). Where the record does not adequately reveal the current state of disability, the fulfillment of the duty to assist includes providing a thorough and contemporaneous medical examination that considers the claimant's prior medical examinations and treatment. See Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). Finally, the Veteran has not identified any outstanding treatment records. In fact he stated in an August 2010 notice response that he had nothing else to submit. As such, there is no need to obtain any additional treatment records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Afford the Veteran a VA examination for bilateral hearing loss. The claims folder must be provided to the examiner for review. The examiner should review the claims file and the examination report should note that the claims file was reviewed, including service treatment records. He or she must also obtain a detailed history from the Veteran, including his exposure to noise in service and after service. All current hearing disorders should be noted. For each hearing disorder diagnosed, the examiner should specifically offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the hearing loss is causally or etiologically related to service. In doing so, the examiner must acknowledge symptoms experienced during and after discharge from service, and discuss lay and medical evidence of continuity of symptomatology. The examiner is also asked to comment on whether or not the threshold shifts shown at separation examination was a precursor to any bilateral hearing loss subsequently shown. In particular, review the lay statements as they relate to the development of the Veteran's hearing loss and provide information as to how the statements comport with generally accepted medical norms. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. The Veteran should also be scheduled for an appropriate VA medical examination regarding his service-connected left wrist disability. The claims file shall be made available to and reviewed by the examiner. The examiner then shall obtain from the Veteran a description of his relevant left wrist history and symptomatology, to include information about onset, frequency, duration, and severity. All tests, studies, or evaluations deemed necessary next shall be performed. This shall include determining whether or not the Veteran has any ankylosis in the left wrist. If so, it also shall include determining where the ankylosis is located in terms of position and degree as well as whether it is favorable or unfavorable. The examiner should also determine the Veteran's range of motion both initially, after repeated use, and during flare-ups, if possible. Each direction (dorsiflexion, palmar flexion, ulnar deviation, and radial deviation) shall be addressed in terms of the entire range possible as well as the points where pain, fatigue, or other limiting factors begin and end. Results shall be expressed in degrees. The examiner should also identify the nature and severity of any neurologic abnormalities that are associated with the Veteran's left wrist condition. 3. Notify the Veteran that it is his responsibility to report for any scheduled examinations and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the bilateral hearing loss claim (or in the case of the service-connected left wrist disability claim- it shall be denied). 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examinations were sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination reports to ensure that they are in complete compliance with the directives of this remand. If any report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If either claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ MARJORIE A. AUER 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).