Citation Nr: 1313769 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 01-02 384A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a bilateral eye disorder. 3. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity. 4. Entitlement to an initial increased rating for L4-5, L5-S1 lumbar spine stenosis with intervertebral disc syndrome at L4-5 and L5-S1, rated as 10 percent disabling prior to September 27, 2011, and as 20 percent disabling as of that date. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from December 1977 to December 1981 and from March 1982 to March 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, in April 2000, February 2006, and October 2006. The RO in North Little Rock, Arkansas, currently has jurisdiction of the claims. The Veteran presented testimony at a personal hearing before the undersigned in February 2013. A transcript is of record. The issues of service connection for disorders affecting the bilateral leg, the bilateral ankle, and the left knee, have been raised by the record. See July 2007 VA Form 21-4138. The Board notes that to the extent the Veteran was referring to neurological impairment of his bilateral lower extremity, those claims will be considered in conjunction with the claims for increased ratings that are on appeal. Orthopedic complaints related to the bilateral leg, bilateral ankle, and left knee, however, have not been adjudicated by the Agency of Original Jurisdiction (AOJ). In addition, the issues of entitlement to a clothing allowance and entitlement to service connection for depression as secondary to the pain caused by the service-connected back disability have also been raised by the record. See April 2007 VA Form 21-4138 and January 2008 VA Form 9. These issues have also have not been adjudicated by the AOJ. As, the Board does not have jurisdiction over any of these claims, 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 Additional development is needed before the Board can adjudicate any of the issues on appeal. The Veteran underwent a VA audio examination in September 2011. The examiner indicated that the claims folder was not available for review and that no opinion as to the etiology of the Veteran's hearing loss could be provided in the absence of such review without resorting to speculation. VA obtained an addendum opinion from this examiner in June 2012. After review of the claims folder, the VA examiner indicated that the Veteran's bilateral hearing loss was not caused by or related to his military service because in-service audiogram results, to include those obtained at his separation, were all within normal limits for both ears and there were no significant changes in the Veteran's hearing on the earliest audiogram compared to the separation audiogram. The rationale was based on a finding that all military audiograms were within normal limits with no progression. This is not adequate. 38 U.S.C.A. § 1113 (West 2002); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Hensley v. Brown, 5 Vet. App. 155 (1993). As such, the claim must be remanded for an adequate opinion. The Veteran also underwent a VA eye conditions examination in October 2011. He was not diagnosed with any current eye condition at that time, though the examiner did note an in-service corneal abrasion. Given the fact that the service treatment records document an incident involving the Veteran's eyes, which corroborate his assertions of having a fire extinguisher go off with residue affecting his eyes, remand of this claim is needed in order to obtain an opinion regarding the etiology of eye conditions previously diagnosed during the course of the appeal, to include bilateral 2+ keratoconjunctivitis sicca, see May 2003 letter from Dr. J.H.N., and mild dry eyes, see e.g., August 2007 VA record. McClain v. Nicholson, 21 Vet. App. 319 (2007). It appears that there may be outstanding VA treatment records. In July 2000, the LA RO requested the Veteran's records from the Little Rock VA Medical Center dated from May 1997 to May 1999. The Little Rock VA Medical Center provided electronic progress notes dated between December 1996 and April 1999, and indicated that records were transferred to the LA VA Medical Center on February 22, 2000. No action was taken to obtain the non-electronic treatment records referenced by the Little Rock VA Medical Center as having been sent to the LA VA Medical Center. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be in the constructive possession of VA adjudicators during the consideration of a 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). The Veteran testified to receiving treatment at the Little Rock VA Medical Center after his March 1988 discharge from active duty. On remand, efforts should be made to obtain non-electronic treatment records generated at the Little Rock VA Medical Center between March 1988 and February 2000. The Veteran's lumbar spine and right lower extremity disabilities were last examined in September 2011. The Veteran testified in February 2013 that his conditions had worsened. While the Board acknowledges that VA treatment records dated after the September 2011 VA examination have been obtained, the treatment records associated with the Veteran's lumbar spine disability do not include range of motion testing results, which are imperative to determining whether he is entitled to an increased rating. It is also unclear whether the Veteran continues to suffer from right lower extremity radiculopathy, since the September 2011 VA examiner indicated that there was no evidence of peripheral neuropathy, see also September 2011 VA peripheral nerves examination, and made no mention of the previously diagnosed and service-connected right lower extremity radiculopathy. Given the foregoing, a contemporaneous VA examination is needed to better assess the current severity of the Veteran's service-connected disabilities. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993) (when a Veteran claims that his condition is worse than when originally rated, and the available evidence is too old for an adequate evaluation of the Veteran's current condition, the VA's duty to assist includes providing a new examination). Recent VA treatment records should also be obtained. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain non-electronic treatment records generated at the Little Rock VA Medical Center between March 1988 and February 2000. This request should be made to both the Little Rock VA Medical Center and the VA Medical Center in Los Angeles, California. If any of these records are in a retired or archived status, efforts must be made to acquire the records. If no records can be found, indicate whether the records do not exist and whether further efforts to obtain the records would be futile. 2. Obtain the Veteran's treatment records from the Central Arkansas Veterans Healthcare System John L. McClellan Memorial Veterans Hospital, dated since October 2012. 3. Return the Veteran's claims file to the VA examiner who conducted the September 2011 VA audio examination (or another medical professional, if such examiner is unavailable). The examiner is to provide an opinion as to whether it is at least as likely as not (that is, a probability of 50 percent or greater) that any current hearing loss had its onset during active service or is related to any in-service disease, event, or injury, to include the Veteran's reported exposure to acoustic trauma during service. The examiner is reminded that normal audiological findings at separation are not determinative. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached based on the examiner's clinical experience, medical expertise, and established medical principles, and with particular discussion of the reported in-service noise exposure. 4. Return the Veteran's claims file to the VA examiner who conducted the October 2011 VA eye conditions examination (or another medical professional, if such examiner is unavailable). The examiner is to provide an opinion as to whether it is at least as likely as not (that is, a probability of 50 percent or greater) that any previously diagnosed eye condition, to include bilateral 2+ keratoconjunctivitis sicca and mild dry eyes, had its onset during active service or is related to any in-service disease, event, or injury, to include the documented bilateral eye incident. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached based on the examiner's clinical experience, medical expertise, and established medical principles, and with particular discussion of the in-service bilateral eye incident. 5. Schedule the Veteran for a VA spine examination to assess the current severity of his lumbar spine and right lower extremity disabilities. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Any indicated studies are to be performed. The examiner is to identify all residuals attributable to the Veteran's service-connected lumbar spine disability. The examiner is to report the range of motion measurements for the lumbar spine, in degrees. Any pain, weakened movement, excess fatigability or incoordination on movement must be noted, and the examiner should indicate whether there is likely to be additional range of motion loss due to any of the following: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is to describe whether pain significantly limits functional ability during flare-ups or when the lumbar spine is used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner is to identify any nerve(s) affected by the Veteran's service-connected lumbar spine disability (other than the radiculopathy of the right lower extremity) and discuss the extent, if any, of paralysis of the nerves involved. The examiner is to discuss whether the Veteran has any neurologic abnormalities, including, but not limited to, bowel or bladder impairment. The examiner is to discuss the current severity of the Veteran's service-connected radiculopathy of the right lower extremity, specifically whether it is more than mild in severity. The examiner must provide a comprehensive report, including complete rationales for all conclusions reached. 6. 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. 7. Finally, readjudicate the claim. If any benefit sought on appeal is not granted, issue an updated SSOC. The Veteran and his representative should also be given an appropriate amount of time to respond to it. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the U.S. 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). _________________________________________________ L. M. BARNARD 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).