Citation Nr: 1329000 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 06-37 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for residuals of a left hand injury. 2. Entitlement to an initial compensable disability rating for bilateral hearing loss prior to July 12, 2011. 3. Entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss on or after July 12, 2011. 4. Entitlement to an initial disability rating in excess of 10 percent for tinnitus. 5. Entitlement to an increased disability rating for a scar of the left thumb, currently evaluated as 10 percent disabling. 6. Entitlement to an initial disability rating in excess of 10 percent for left thumb digital nerve damage. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active service from June 1983 to May 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In pertinent part, the RO denied entitlement to a compensable evaluation for a scar of the left thumb in a December 2003 rating decision. Subsequently, in a January 2005 rating decision, the RO granted service connection for bilateral hearing loss and tinnitus and assigned a noncompensable evaluation for hearing loss effective from July 30, 2004, and a 10 percent evaluation for tinnitus effective from November 12, 2004. The Veteran's left thumb evaluation was recharacterized to include numbness, but a compensable evaluation was denied. In November 2007, the Veteran was assigned a compensable 10 percent evaluation for his left thumb scar effective from August 26, 2003. In a May 2009 rating decision, the RO continued to deny the Veteran increased disability evaluations for the Veteran's bilateral hearing loss and tinnitus and also denied his claim of entitlement to TDIU. In another May 2009 rating decision, the RO denied a separate 10 percent disability rating for left thumb digital nerve damage effective from August 26, 2003. The Veteran was also denied entitlement to service connection for residuals of a left hand injury in an October 2009 rating decision. In an August 2011 rating decision, the RO granted entitlement to service connection for a low back disorder, which constituted a full grant of that appeal, and assigned a 10 percent rating for the Veteran's service-connected bilateral hearing loss effective July 12, 2011. The Veteran has continued his appeal for higher disability ratings for his left thumb and bilateral hearing loss. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran's claims were previously before the Board and remanded in May 2011. 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 Documents dated in May 2009 and June 2009 show that the Veteran applied for disability benefits from the Social Security Administration (SSA). Specifically, the correspondence requested that VA provide the Veteran's medical records to SSA in conjunction with his disability claim. There is no indication as to which disability or disabilities upon which the Veteran sought these benefits. However, no attempt has been made to obtain these federal records, and such attempts must be accomplished on remand. The Board also finds that additional VA examinations are necessary for the claims involving the Veteran's left hand and thumb as well as entitlement to TDIU. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain a copy of any decision to grant or deny SSA disability benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 2. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected left thumb scar and digital nerve damage and to determine whether there are any other residuals of a left hand injury. 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. The examiner should comment on the severity of the Veteran's service-connected left thumb scar and report all signs and symptoms necessary for rating the disability under the rating criteria. In particular, the examiner should provide a description of the Veteran's left thumb scar, including the size and location, and indicate whether it is unstable or painful; deep or superficial; and linear or nonlinear. The examiner should also state whether the scar causes any functional loss other than the nerve damage that is already service-connected. The examiner should also comment on the severity of the Veteran's service-connected left thumb digital nerve damage and report all signs and symptoms necessary for rating the disability under the rating criteria. In particular, the examiner should identify any functional effects and comment as to whether the Veteran has mild, moderate, or severe incomplete paralysis, or complete paralysis. In addition, the examiner should indicate whether there are any residuals of a left hand injury other than a left thumb scar and left thumb digital nerve damage. If there any separate residuals, he or she state whether it is at least as likely as not that such a disorder is related to the Veteran's military service, including his symptomatology therein. (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 a certain 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 appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The Veteran should also be afforded a VA examination to determine the effect of his service-connected disabilities on his employability. 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 combined effect of the Veteran's service-connected disabilities on his ability to engage in any type of full-time employment and whether, in the examiner's opinion, the service-connected disabilities are of such severity to result in unemployability. The Veteran is currently service-connected for a chronic lower back muscular strain with degenerative disc disease, a left thumb scar, left thumb digital nerve damage, tinnitus, and bilateral hearing loss. It should be noted that consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 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 these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in this remand. 5. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted, the appellant 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 appellant has 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). _________________________________________________ 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).