Citation Nr: 1321398 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 13-04 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a skin disorder, to include squamous cell carcinoma of the right ear due to exposure to ionizing radiation. 2. Entitlement to an increased evaluation for bilateral hearing loss, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from March 1943 to July 1946. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, and a September 2009 rating decision of the Togus RO in Augusta, Maine. The case was subsequently transferred to the jurisdiction of the RO in Pittsburgh, Pennsylvania. In April 2013, the Veteran testified at videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The Board notes that additional evidence has been submitted, which was not previously considered by the RO. However, in February 2013, under Section 501 of Public Law 112-154, 38 U.S.C. § 7105 was amended to establish an automatic waiver of agency of original jurisdiction (AOJ) review of evidence related to an issue or issues with which disagreement has been expressed if such evidence is submitted on or after the date that the AOJ receives the substantive appeal or its equivalent in correspondence. Such evidence will be subject to initial review by the Board of Veterans' Appeals, unless the appellant specifically requests, in writing, initial review by the RO. In this case, the Veteran filed his substantive appeal in February 2013, the evidence was received in May 2013, and he has not specifically requested an initial review of the evidence by the RO. In addition to the paper claims file, there is a Virtual VA paperless file associated with the Veteran's case. The paperless file included an electronic copy of the April 2013 hearing transcript; however, a review of the remaining documents in the paperless claims file reveals that they are either duplicative of the evidence in the paper claims file or irrelevant to the issues on appeal. In an October 2011 VA examination report, the examiner opined that the Veteran had tinnitus that was at least as likely as not a symptom associated with his service-connected hearing loss. During the April 2013 hearing, the Veteran also asserted that he had vertigo related to a blockage behind his left ear that was caused by his service-connected bilateral hearing loss. See hearing transcript, p. 7. Therefore, the Board finds that the issues of entitlement to service connection for tinnitus and vertigo, to include as secondary to service-connected bilateral hearing loss, have been raised by the record, but have not been adjudicated by the AOJ. Accordingly, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 appellant if further action is required. REMAND The Board's review of the claims file reveals that further RO/AMC action concerning the issues on appeal is warranted. In May 2013 correspondence, a private ear, nose, and throat physician reported that he reviewed the Veteran's audiometric testing reports from December 2009 to January 2013, including VA treatment notes and his own audiometric examination. He included a copy of his December 2012 audiogram report and uninterpreted VA audiogram results dated in December 2009, June 2010, October 2011, and January 2013. The December 2009 VA audiogram shows results consistent with a December 2009 VA audiology note included in the record. Likewise, the October 2011 VA audiogram shows results consistent with the findings in the October 2011 VA examination associated with the record. However, the June 2010 and January 2013 VA audiogram results do not correspond to any treatment notes associated with the claims file. Indeed, the most recent VA treatment notes associated with the record are dated in August 2009 with the exception of a December 2009 VA audiology treatment note submitted by the Veteran in February 2010. In addition, in the December 2009 VA audiology treatment note, the audiologist noted that the Veteran's hearing loss had increased in severity since October 2009. However, there are no VA treatment notes corresponding to audiology treatment in October 2009. VA has a duty to obtain all relevant VA and Governmental records prior to adjudication of a claim. 38 U.S.C.A § 5103A(c)(3) (West 2002); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the claims file, are in the constructive possession of the Board and must be considered); see also 38 C.F.R. § 3.159(c)(2). Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell, 2 Vet. App. at 611. Moreover, it is unclear from the December 2012 private audiometry report whether the speech discrimination scores were obtained using the Maryland CNC test. Therefore, the Board finds that the RO/AMC should attempt to clarify whether the Veteran's audiogram conformed to VA regulations, including whether the audiologic testing included Maryland CNC testing. See Savage v. Shinseki, 24 Vet. App. 259, 270 (VA may not reject a private audiological evaluation for failure to apply the Maryland CNC Test without first making a diligent effort to determine whether it was applied); see also Kelly v. Brown, 7 Vet. App. 471 (1995) (the Board has the ability to interpret private audiological findings in its role as fact-finder). With respect to the Veteran's service connection claim, the Board notes that the issue was previously characterized and developed as a claim of service connection for squamous cell carcinoma of the right ear due to exposure to ionizing radiation. During the April 2013 hearing, the Veteran clarified that his contention was that his skin cancer was only caused by exposure to ionizing radiation. He did not believe that his skin cancer manifested during service, and he denied excessive sun exposure. See hearing transcript, p. 22. Nevertheless, the Veteran also testified that he noticed a problem with his skin approximately one year following his separation from service. Specifically, he noted that he had a "terrible rash" on his face, neck, and arms. He indicated that he has been treated for small precancerous lesions every three to four months since he developed the rash. Id. at 18. In addition, the Veteran has submitted private dermatology records documenting treatment for eczema and dermatitis. Therefore, although not specifically claimed by the Veteran, the Board has recharacterized the issue to consider any skin disorder that may be present. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction his mental condition, whatever it is). However, the Veteran has not been afforded a VA examination with respect to his claim of service connection for a skin disorder. Accordingly, the Board finds that the Veteran should be afforded a VA examination to determine the nature, extent, and etiology of any current skin disorder, to include squamous cell carcinoma of the right ear. See 38 C.F.R. § 3.159(4); McLendon v. Nicholson, 20 Vet.App. 79 (2006). 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. The RO/AMC should request that the Veteran identify the names, addresses, and approximate dates of treatment for any VA and non-VA health care providers who have treated him for his bilateral hearing loss and/or a skin disorder. A specific request should be made for any private treatment records from the Veteran's dermatologist. After obtaining any necessary authorization from the Veteran, the RO/AMC should attempt to obtain copies of pertinent treatment records identified by the Veteran in response to this request that are not already contained in the claims file. Any negative search result should be noted in the record. A specific request should be made for VA treatment notes pertaining to audiology testing and/or treatment in October 2009, June 2010, and January 2013. A specific request should also be made for all outstanding VA treatment notes dated from August 2009 to present. 2. The RO/AMC should attempt to clarify whether the Veteran's private physician used the Maryland CNC test during the December 2012 audiological examination. He should also be asked whether the Veteran's puretone threshold was tested at 3000 Hertz. 3. The Veteran should be afforded a VA examination to determine the nature and etiology of any current skin disorder, to include squamous cell carcinoma, eczema, and/or dermatitis, that may be present. 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, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current skin disorders, to include whether he has squamous cell carcinoma, eczema, and/or dermatitis. For each disorder identified, the examiner should state whether it is at least as likely as not the disorder is causally or etiologically related to the Veteran's military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) 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 Veteran'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 action taken in the preceding paragraphs. 5. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. 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).