Citation Nr: 1338907 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 04-23 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a right shoulder disability. 3. Entitlement to service connection for a dental disorder for treatment purposes. (The issue of entitlement to educational assistance under the provisions of Chapter 30, Title 38, United States Code, is the subject of a separate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty in the Army from September 6, 1989 to May 18, 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2005 and July 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The August 2005 rating decision denied service connection for bilateral hearing loss disability, and the July 2006 rating decision denied service connection for a right shoulder disability. During the appeal, the Veteran moved to Ohio, and jurisdiction of the Veteran's claim has been assumed by the Cleveland, Ohio, RO. In May 2013, the Veteran presented testimony at a video conference hearing before the undersigned. A transcript of that hearing is of record. The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that additional development is warranted in connection with the three issues listed on the title page. As to the claim for service connection for bilateral hearing loss, VA provided the Veteran with an examination in July 2005, at which time, he did not have a bilateral hearing loss disability for VA purposes, as defined by 38 C.F.R. § 3.385 (2013). The Veteran claims that his hearing has worsened since 2005, and the Board finds that a new examination is warranted to see if he now has a bilateral hearing loss disability for VA purposes and, if so, if it is related to noise exposure during service. As to the claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a right shoulder disability, this claim was initially considered as a disability being secondary to a service-connected disability involving the Veteran's right upper extremity. However, in reviewing the record, it is clear that the Veteran's allegations involve a claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 only. See, e.g., VA Forms 119, dated May 2009 and June 2009, and May 2013 hearing testimony. The RO has properly considered this claim as one involving the provisions of § 1151. See May 2007 statement of the case. The Veteran has not been provided with a VA examination in connection with this claim, and the Board finds that an examination is necessary to decide the claim. As to the claim for service connection for a dental disorder for treatment purposes, such claim was denied in a May 2010 rating decision. That same month, the Veteran submitted a notice of disagreement regarding the denial of this claim. A statement of the case (SOC) has not been issued, and thus this claim must be remanded for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Finally, the most recent VA treatment records in the claims file, including Virtual VA and VBMS, are from June 16, 2011. The Board will request that VA treatment records dated since that time be associated with the Veteran's file. Accordingly, the case is REMANDED for the following actions: 1. Obtain outstanding VA treatment records from June 16, 2011, to the present and associate them with the Veteran's claims file. 2. After the outstanding VA treatment records are obtained, schedule the Veteran for an audiological evaluation (to include audiometric studies) to determine whether the Veteran has a bilateral hearing loss disability for VA purposes and, if so, the nature and likely etiology. The claims file and a copy of this Remand should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is informed that Volume 2 of the claims file has a manila envelope at the bottom of the file. This envelope contains an enlistment Report of Medical Examination, dated October 15, 1988 and a January 1992 Report of Medical Examination, both of which have audiometer findings at item # 71 on both forms. Additionally, there is a January 1992 Reference Audiogram, which shows a finding of "Routinely Exposed to Hazardous Noise" in the Remarks section. These documents have been tagged with post-it notes with the applicable month and year. The examiner should address the following question if the Veteran has a bilateral hearing loss disability for VA purposes: Is it at least as likely as not (50 percent probability or greater) that any currently diagnosed bilateral hearing loss disability is related to an incident from the Veteran's Army service from September 1989 to May 1992, including in-service acoustic trauma? A comprehensive rationale for the opinion must be provided. 3. After the outstanding VA treatment records are obtained, schedule the Veteran for a VA examination by a medical professional with the appropriate expertise to determine whether the Veteran has an additional right shoulder disability as a result of the right cubital tunnel release that was performed on April 30, 2004, at the VA Medical Center in Palo Alto, California. The Veteran claims that the regional block anesthesia performed in connection with this procedure is the cause of the additional right shoulder disability. All findings must be reported in detail. The claims file and all relevant electronic records must be made available to the examiner. Based on the clinical examination and a review of the evidence, the examiner must provide an opinion as to whether the Veteran has an additional disability of the right shoulder as a result of the April 30, 2004, right cubital tunnel release from the regional block anesthesia. If so, the examiner must provide an opinion as to whether any additional right shoulder disability was at least as likely as not (50 percent or greater probability): (a) caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical, or surgical treatment, or examination (to specifically include the April 2004 surgery at the VAMC in Palo Alto); or (b) was due to an event not reasonably foreseeable. As to part (b) of the question, the examiner is informed that the standard is what a "reasonable health care provider" would have considered to be an ordinary risk of treatment that would be disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32, which requires the primary health care provider to explain the reasonably foreseeable risks associated with the surgery or treatment being provided. A comprehensive rationale for all opinions must be provided in answering all of the above questions. 4. Issue an SOC addressing the issue of entitlement to service connection for a dental disorder for treatment purposes. The Veteran should be informed of the actions necessary to perfect an appeal. Thereafter, return the issue to the Board only if an adequate and timely substantive appeal is filed. 5. After the development requested above has been completed to the extent possible, the record (to include any and all relevant evidence added to the Veteran's Virtual VA and/or VBMS folders) should again be reviewed, and the issues on appeal should be readjudicated. If any benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a Supplemental SOC and be given the opportunity 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 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. 2013). _______________________________________________ PAUL SORISIO Acting 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).