Citation Nr: 1316554 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 08-36 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for residuals of a right hand injury. 4. Entitlement to service connection for a left thumb disability. 5. Entitlement to service connection for residuals of a right third finger fracture. 6. Entitlement to service connection for a right knee disability. 7. Entitlement to service connection for a right thigh disability. 8. Entitlement to an initial compensable rating for pseudofolliculitis barbae. 9. Entitlement to an initial rating in excess of 10 percent for left shoulder bursitis with degenerative arthritis prior to January 4, 2010, and in excess of 20 percent from January 4, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his son ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from July 1977 to June 1981, April 1982 to April 1984, November 2001 to November 2002, and March 2003 to November 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2006 and April 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Although the RO determined that all issues on appeal arose from the April 2008 rating decision, the Board construes a December 2006 letter from Veteran's representative requesting "reconsideration" of the December 2006 rating decision with respect to higher ratings as a valid notice of disagreement of those issues. 38 C.F.R. §§ 20.200, 20.201 (2012). Accordingly, the increased rating issues involving pseudofolliculitis barbae, and left shoulder bursitis, with degenerative arthritis, stem from the December 2006 rating decision that initially granted service connection for these disabilities. In September 2012, the Veteran testified before the undersigned at a Board hearing at the RO. A transcript of the hearing is of record. The claims of entitlement to increased ratings for left shoulder bursitis with degenerative arthritis, and pseudofolliculitis barbae; as well as claims of entitlement to service connection for hearing loss and tinnitus are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT In September 2012, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw his appeal to the issues of entitlement to service connection for residuals of a right hand injury, a left thumb disability, residuals of a right third finger fracture, right knee disability and right thigh disability. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal for the issues of service connection for residuals of a right hand injury, a left thumb disability, residuals of a right third finger fracture, right knee disability and right thigh disability have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Withdrawn Issues Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn on the record or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2012). The Veteran withdrew his claims of entitlement to service connection for residuals of a right hand injury, a left thumb disability, residuals of a right third finger fracture, a right knee disability and right thigh disability at the September 2012 hearing both verbally and in writing, and as such, there remain no allegations of errors of fact or law for appellate consideration of these issues. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. ORDER The claims of entitlement to service connection for residuals of a right hand injury, a left thumb disability, residuals of a right third finger fracture, a right knee disability and right thigh disability are dismissed. REMAND Hearing Loss and Tinnitus The Veteran asserts that his hearing loss and tinnitus began in service. He attributes these disorders to noise exposure from rifle, machine gun and tank fire, as well as from explosive detonations. His service treatment records show that he was treated on several occasions in 1983 for complaints of ear pain, primarily the left ear, in addition to reports that he could not hear very well and was experiencing "buzzing" in his ear. One record, dated in June 1983, reflects the Veteran's report that he experienced ear pain after removing his ear plugs on the rifle range. He underwent a postservice audiological QTC examination in March 2006 at which time the examiner found that the Veteran did not have hearing problems, while simultaneously finding that the etiology of the his tinnitus was at least as likely as not due to hearing loss. In his November 2008 substantive appeal the Veteran reported that his hearing loss has gotten worse and the ringing in his ears was higher and lasted longer. He had similarly reported in a January 2007 statement that his hearing loss and tinnitus had gotten "significantly" worse since his last examination and he requested that he be afforded a new VA examination. The Board agrees. In light of service treatment records showing Veteran's complaints of hearing problems and buzzing in his ear, and recent complaints that these disabilities have worsened, he should be afforded a new VA examination that addresses the current etiology of these claimed disabilities. 38 U.S.C.A. § 5103A(d). This is especially so given that the March 2006 QTC examiner did not address the pertinent service treatment records, and related tinnitus to a hearing loss while also finding that the Veteran did not have any hearing problems. Also, there appears to be outstanding pertinent treatment records with respect to these claims. The Veteran testified in September 2012 that he last underwent an audiological examination by VA in 2008, but there is no such record on file. In fact, there do not appear to be any VA treatment records on file for the period from February 2007 to December 2008. Accordingly, all pertinent, outstanding VA treatment should be obtained. 38 U.S.C.A. § 5103A(c). Left Shoulder Bursitis with Degenerative Arthritis The Veteran similarly testified in September 2012 that his left shoulder disability had worsened over the years and was affecting his ability to perform his job. His son testified that the Veteran was no longer able to perform the tasks around the house or at his church that he used to be able to perform. The appellant's son said he moved back in with his father initially to help him perform household tasks and noticed that the Veteran's shoulder condition had worsened over the last year or so. VA's General Counsel has held that a further examination is needed in instances where the Veteran has reported a worsening in the disability since his last examination. See VAOPGCPREC 11-95 (Apr. 7, 1995). Accordingly, the Veteran should be afforded a new VA examination. There also appears to be outstanding medical evidence that is pertinent to this claim for the appeal period prior to January 4, 2010, as well as the period from January 4, 2010. With respect to the period prior to January 4, 2010, as stated above, there are no VA treatment records on file from February 2007 to December 2008. Moreover, VA has notice that there is at least one pertinent record on file during this period. In this regard a December 2008 outpatient record that notes that the Veteran was last seen in physical therapy for his left shoulder in August 2007. Accordingly, all pertinent treatment records for the period from February 2007 to December 2008 should be obtained as well as any outstanding records from June 2010 to present. 38 U.S.C.A. § 5103A(c). In addition, there are pertinent private medical records for the period from January 2010 that should be obtained. In this regard, the Veteran said that his job duties at the Defense Logistics Agency at Robbins Air Force Base in Warner Robins, Georgia, was aggravating his left shoulder disability. He explained that he was undergoing private physical therapy on a daily basis from a Dr. Kinnerw for a worker's compensation tennis elbow disability, but that Dr. Kinnerw told him that he could no longer lift and rotate the left shoulder due to the constant pull on the muscle from loss of bone in his shoulder. As these records appear pertinent to his left shoulder disability claim, they should be obtained. 38 U.S.C.A. § 5103A(b). Pseudofolliculitis Barbae At the September 2012 Board hearing, the Veteran reported continuing symptoms of pseudofolliculitis barbae that he self treats. In light of the fact that he has not been evaluated for this disability since March 2006, and that the fact that the appellant requested in October 2012 that he be reevaluated for this disability, he should be afforded a new VA examination so as to assess the current severity of this disability. 38 U.S.C.A. § 5103A(d). Based on the foregoing, the case is REMANDED for the following action: 1. After securing any necessary release from the Veteran obtain all outstanding records of evaluation and/or treatment held by VA and/or any other pertinent private medical facility which pertain to his hearing loss, tinnitus, left shoulder bursitis with degenerative arthritis, and pseudofolliculitis barbae. This specifically includes VA outpatient records from February 2007 to December 2008, and June 2010 to present. Also, request private physical therapy session records from Dr. Kinnerw in Warner Robins, Georgia. All records and/or responses received should be associated with the claims folder. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, afford the Veteran an audiological examination. The examiner must be given access to the claims and Virtual VA files for review prior to the examination. This includes access to the service treatment records which show ear complaints in 1983, to include loss of hearing and buzzing. Following the examination the examiner must indicate whether the Veteran currently has a hearing loss disability and/or tinnitus, and address whether it is at least as likely as not that any diagnosed hearing loss and/or tinnitus is related to the appellant's active duty service, to include his in-service noise exposure. Further, if hearing loss is found to be related to service the examiner must address whether tinnitus is either caused or aggravated by the hearing loss. The examiner must provide a complete rationale for any conclusion offered. If he or she cannot provide the requested opinion, the examiner should explain why this is the case. 3. After completing instruction one, the Veteran is also to be afforded a VA orthopedic examination to determine the nature and extent of his left shoulder bursitis with degenerative arthritis. The examiner must be given access to the claims and Virtual VA files for review prior to the examination. The examiner must document all symptoms and functional effects of the left shoulder disability. The examiner must address whether the left shoulder disorder is manifested by weakened movement, excess fatigability, or incoordination. If feasible, these determinations should be expressed in terms of the degree of additional loss of motion or ankylosis. The examiner must opine whether left shoulder pain significantly limits functional ability during flare-ups or when the joint is used repeatedly over a period of time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss or ankylosis due to pain on use or during flare-ups. 4. After completing instruction one, the Veteran is also to be afforded a VA skin examination in order to determine the current nature and severity of his pseudofolliculitis barbae. The examination should, if possible, be scheduled when the disorder is an active phase. All indicated studies should be performed, and all findings should be reported in detail. The examiner must be given access to the claims and Virtual VA files for review prior to the examination. The examiner must provide specific findings as to each of the following (assuming the skin affected by pseudofolliculitis barbae is the "scar" for purposes of answering the below listed questions): What is the length and width of any scar due to pseudofolliculitis barbae measured in inches? Is any surface contour elevated or depressed on palpation? Is any scar is adherent to underlying tissue? Is the skin hypo- or hyper-pigmented in an area exceeding six square inches? Is any skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches? Is underlying soft tissue missing in an area exceeding six square inches? Is the skin indurated and inflexible in an area exceeding six square inches? Does any scar due to pseudofolliculitis barbae cover an area or areas of 144 square inches or greater? The rationale for all opinions expressed must be provided. 5. The Veteran is to be notified that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for any VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 6. The RO/AMC must then review the examination reports to ensure that they are in complete compliance with the directives of this REMAND, and that the examiners have documented their consideration of all records contained in Virtual VA. If any report is deficient in any manner, the RO/AMC must implement corrective procedures. 7. After completion of the above development, the Veteran's claims must be readjudicated. If any determination remains unfavorable, or less than fully favorable, to the Veteran, he and his representative should be provided with a supplemental statement of the case and given an opportunity to respond thereto. The appellant and his representative have 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs