Citation Nr: 1333933 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-27 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial compensable evaluation for bilateral hearing loss. 2. Entitlement to an evaluation in excess of 10 percent for lumbosacral strain. 3. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from February 1973 to November 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2008 and November 2009 rating decisions by the Winston-Salem, North Carolina, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The November 2008 decision granted service connection for PTSD, rated 30 percent disabling, and continued a 10 percent evaluation for lumbosacral strain. In June 2009, the RO awarded an increased 50 percent evaluation for PTSD, but the Veteran has elected to continue his appeal and seek a yet higher evaluation. In the November 2009 decision, service connection for bilateral hearing loss was awarded and a noncompensable evaluation assigned. The Veteran sought reconsideration, an in April 2010, the RO issued a decision continuing the assigned evaluation. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU), where there is evidence of record regarding unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The RO properly inferred a claim for TDIU as part of the current claims, and contacted the Veteran in December 2010 to develop that claim for adjudication. The Veteran responded that same month stating that although he could no longer drive a truck due to his low back, he was not claiming TDIU and only wished to appeal the Schedular 10 percent evaluation. 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 Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims; the duty to assist includes provision of an adequate VA examination when necessary to resolution of the claims, and securing of relevant treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. With regard to both issues, updated VA treatment records, from June 2011 to the present, should be secured and associated with the claims file. PTSD and Lumbosacral Strain The Veteran was most recently examined for PTSD and his low back disability in August 2008. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. However, a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Not only has the Veteran generally alleged that his conditions have worsened since 2008, the clinical evidence of record also tends to support his allegations, showing changes in medication and notations of decreased range of motion. Accordingly, remand is required for updated VA examinations. Hearing Loss The Veteran has not alleged that his bilateral hearing loss has worsened, nor is there any indication of worsening in the evidence of record. The Veteran has, however, argued that the two VA contract examinations of record, dated in September 2009 and February 2010, are not adequate for rating purposes. He states that the September 2009 examiner contacted him soon after his audiometric testing to inform him the machine used was broken or not properly calibrated, and retesting would be required. While there is no documentation of such in the record, the fact remains that the Veteran was scheduled for another examination soon after, which showed results varying somewhat from the September 2009 test. That February 2010 test fails to clearly indicate that it complied with the regulatory requirements for an adequate examination. Namely, the speech recognition test administered is not identified as the Maryland CNC test VA has set as a standard. 38 C.F.R. § 4.85. Neither test, therefore, may be relied upon in assessing the current disability at this time. On remand, an updated examination, which specifies compliance with the regulatory provisions, is required. Additionally, the February 2010 examiner should be contacted to clarify the test administered, to determine if it was indeed the Maryland CNC. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file complete VA treatment records from the medical center in Fayetteville, North Carolina, and all associated clinics, as well as any other VA facility identified by Veteran or in the record, for the period of June 2011 to the present. Complete data from any audiometric testing performed during that period must be specifically requested. 2. Contact the February 2010 VA contract examiner, Mr. MRH, and ask him to identify the speech recognition test used in testing done on that date. 3. Schedule the Veteran for a VA audiology examination. All required testing must be accomplished; the examiner must specify that the Maryland CNC test was performed. The examiner must fully describe the extent of the Veteran's current bilateral hearing loss, to include reporting of current audiometric findings. 4. Schedule the Veteran for a VA spine examination. All required testing must be accomplished. The examiner must describe in detail the full extent of the Veteran's service-connected low back disability, to include orthopedic and neurologic manifestations. 5. Schedule the Veteran for a VA PTSD review examination. All required testing must be accomplished. The examiner must describe in detail the full extent of the Veteran's service-connected PTSD disability. 6. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ BETHANY L. BUCK 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).