Citation Nr: 1318746 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-40 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased evaluation for residuals of a right index finger fracture, currently evaluated as 10 percent disabling. 2. Entitlement to an initial compensable evaluation for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from September 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In that rating decision, the RO granted an increased evaluation of 10 percent for residuals of a right index finger fracture effective from March 19, 2008. The RO also granted service connection for left ear hearing loss and assigned a noncompensable evaluation effective from March 27, 2008. The Veteran appealed the assigned evaluations. Additionally, in the June 2008 rating decision, the RO denied service connection for right ear hearing loss. The Veteran submitted a notice of disagreement, and a statement of the case (SOC) was issued in September 2009 that included the claim of service connection for right ear hearing loss. However, in the October 2009 VA Form 9, Appeal to the Board, the Veteran indicated that he was only appealing the claims for increased evaluations for the right index finger and left ear hearing loss. See 38 C.F.R. § 20.202 (2012) (if a SOC lists several issues, the substantive appeal must either indicate that the appeal is being perfected as to all issues or must specifically identify the issues being appealed). There are no other submissions that could be construed as a timely substantive appeal, and the RO has not certified the issue as being on appeal. Therefore, the Board finds that an appeal was not perfected as to the claim of service connection for right ear hearing loss. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA). Accordingly, the issue is not on appeal, and no further consideration is necessary. In addition to the paper claims file, there is a Virtual VA paperless file associated with the Veteran's claims. A review of the documents in the paperless claims file reveals documents that are either duplicative of the evidence in the paper claims file or irrelevant to the issues on appeal. 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 The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). In this case, the Veteran was last provided a VA examination in connection with his current claim for an increased evaluation for his service-connected right index finger disability in May 2008, which would have been over five years ago. The May 2008 VA examination included an x-ray study of the right hand that showed no radiographic evidence of a fracture or dislocation and mild degenerative changes were noted. Since that examination, the Veteran submitted a copy of a September 2008 VA x-ray study of the right hand that showed a linear lucency at the base of the distal phalanx of the index finger "which could be due to [an] undisplaced fracture if the [Veteran] has more pain." The interpreting radiologist noted that the major abnormality was a new finding. Additionally, in the October 2009 VA Form 9, the Veteran stated that his right index finger caused "constant pain," and he indicated that he used his right hand "less and less." He noted that his discomfort had continued to worsen. Such evidence suggests a possible increase in severity since the May 2008 VA examination. Likewise, the Veteran was last provided a VA examination in connection with his current claim for an initial compensable evaluation for his service-connected left ear hearing loss in April 2008, which would have been over five years ago. Since that examination, the Veteran submitted a copy of an April 2009 VA audiology consultation report. In the report, the audiologist noted the Veteran's reports that his hearing loss had increased in severity. He reported that he was interviewing for jobs and felt he had to concentrate too hard in order to understand what was being said to him. Such evidence suggests a possible increase in severity since the April 2008 VA examination. VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that a VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected right index finger disability and left ear hearing loss. In addition, the RO/AMC should obtain and associate with the claims file all outstanding VA treatment records and any identified private treatment records. The claims file currently includes copies of a VA x-ray study of the right hand dated in September 2008 and a VA audiology consultation dated in April 2009 that were submitted by the Veteran. In the audiology consultation report, the audiologist noted that the Veteran had an audiological examination in October 2008. She also noted that the Veteran's hearing acuity had remained "essentially stable" since the last evaluation in October 2008. The October 2008 VA treatment record is not included in the claims file. 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 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). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected right index finger and left ear hearing loss disabilities. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. Any outstanding VA medical records should be obtained and associated with the file. A specific request should be made for a VA audiological examination and hearing aid evaluation dated in October 2008, as noted in the April 2009 VA audiology consultation report associated with the claims file. 2. After completing the preceding development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected right index finger disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected disability. The examiner should report all signs and symptoms necessary for rating the Veteran's right index finger disability under the rating criteria. In particular, the examiner should note any limitation of motion in the right index finger and indicate whether the right index finger exhibits weakened movement, excess fatigability, or incoordination. These determinations should be expressed in terms of the degree of additional loss of motion. The examiner should also indicate whether any functional limitation due to pain, weakened movement, excess fatigability, or incoordination is commensurate with amputation at the proximal interphalangeal joint or proximal thereto, and with or without metacarpal resection. The examiner should also indicate whether the Veteran experiences any neurological impairment due to his right index finger disability. If such neurological impairment exists, the examiner should identify the specific nerve(s) involved and describe all manifestations and the severity of such damage. This VA examination should also include a statement as the effect of the Veteran's right index finger disability on his occupational functioning and daily activities. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected left ear hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. This VA examination should also include a statement as to the effect of the Veteran's left ear hearing loss on his occupational functioning and daily activities. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the above actions, the RO/AMC should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of all additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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 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). _________________________________________________ JESSICA J. WILLS 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).