Citation Nr: 1331682 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-48 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for status post right pectoralis muscle tear. 2. Entitlement to an initial compensable evaluation for right ear hearing loss. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1984 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted service connection for right ear hearing loss and status post right pectoralis muscle tear. That rating decision also awarded noncompensable evaluations for those disabilities, effective November 1, 2008-the date following his discharge from service. The Veteran timely appealed both of those initial evaluations. During the pendency of the appeal, in an April 2010 rating decision, the status post right pectoralis muscle tear evaluation was increased to 20 percent disabling, effective November 1, 2008. The Board has recharacterized the issue on appeal in order to comport with this award of benefits. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND With regards to the right ear hearing loss claim, the Board notes that the Veteran's last VA examination of that disability was prior to his discharge from service in August 2008. In his June 2009 notice of disagreement, the Veteran indicated that he was seen at VA for his hearing loss in June 2009 and that his hearing loss was worse. Likewise, the Board notes that the Veteran's last right pectoral examination was in January 2010, well over three years ago. The Veteran has additionally indicated in his statements that he has consulted with an orthopedic surgeon with regards to surgical intervention with respect to that disability. First, the Board notes that the last VA treatment records in the Virtual VA claims file are from June 2009, but do not contain any audiological treatment or examination of the Veteran. Thus, it appears that there are potentially outstanding VA treatment records that are currently not associated with the claims file with respect to the right ear hearing loss claim. Also, it appears to the Board that there may be some potentially outstanding VA or private treatment records with respect to his status post right pectoralis muscle tear, including possible surgical records for that disability. In light of these conclusions, the Board finds that a remand is necessary so that attempts to obtain any outstanding VA or private records can be made. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Board additionally finds that VA examinations of the Veteran's right ear hearing loss and right pectoral disabilities should be obtained on remand, in light of the significant amount of time since the last examinations of the Veteran's disabilities were performed and his statements that at least his right ear hearing loss has worsened since military service. See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the San Diego VA Medical Center, or any other VA medical facility that may have treated the Veteran, since discharge from service in November 2008 and associate those documents with the claims file. 2. Ask the Veteran to identify any VA or private treatment that he may have had for his right ear hearing loss and right pectoral disabilities, which are not already of record, including any orthopedic surgery records pertaining to his status post right pectoralis muscle tear. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Schedule the Veteran for a VA audiologic examination in order to determine the current severity of his right ear hearing loss. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted, including audiometric testing, and the results reported in detail. The examination report should also discuss the Veteran's complaints of hearing loss and its impact on his activities of daily living and occupational functioning. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Schedule the Veteran for a VA examination to determine the current nature and severity of his status post right pectoralis muscle tear. The claims folder must be made available to and reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file, and examination of the Veteran, the examiner should discuss the Veteran's lay complaints with respect to his status post right pectoralis muscle tear. The examiner should identify the muscle group(s) affected, and clarify whether the disability is more closely approximate to slight, moderate, moderately severe, or severe in nature. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claims for increased evaluation of his right ear hearing loss and status post right pectoralis muscle tear. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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 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). _________________________________________________ THOMAS J. DANNAHER 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) (2013).