Citation Nr: 1340540 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 10-30 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for cubital tunnel syndrome, right elbow, dominant in excess of 10 percent, prior to January 12, 2011, and 30 percent thereafter. 2. Entitlement to special monthly compensation (SMC) for loss of use of right hand. 3. Entitlement to service connection for bilateral ruptured eardrums. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which increased to 10 percent the rating for the Veteran's service-connected cubital tunnel syndrome, right elbow, dominant and also denied service connection for bilateral ruptured eardrums. The Veteran timely appealed the increased rating and the denial. Subsequent to the April 2008 rating decision, in a June 2011 rating decision, the RO increased the assigned evaluation for the Veteran's service-connected cubital tunnel syndrome, right elbow, dominant to 30 percent effective January 12, 2011. Despite the grant of this increased rating, the Veteran has not been awarded the highest possible evaluation. As he is presumed to be seeking the maximum possible evaluation, his claim remains in appellate status. A.B. v. Brown, 6 Vet. App. 35 (1993). In January 2012, the Veteran submitted a claim for service connection for "loss of use of the right hand" secondary to service connected cubital tunnel syndrome. This issue will be characterized as entitlement to special monthly compensation (SMC) for loss of use of right hand. The Board will take jurisdiction over this issue as inextricably intertwined with the issue of an increased rating for the right elbow disability. A review of the Virtual VA paperless claims processing system was conducted. 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. (CONTINUED ON NEXT PAGE) REMAND Cubital Tunnel Syndrome Regarding the Veteran's claim for an increased rating for cubital tunnel syndrome, right elbow, dominant, the most recent VA examination was in March 2011. In March 2013, the Veteran submitted VA treatment records dated March 2013, along with a waiver of VA Regional Office jurisdiction. These treatment records note that the Veteran has had "persistent and probably worsening weakness in his right hand with numbness in his small and ring fingers". He also now alleges that he cannot use his right hand. When it is indicated that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate. See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). As the Veteran's complaints of progressively worsening weakness and an inability to use his right hand indicate possible increased severity of his service-connected cubital tunnel syndrome, the Veteran should be afforded a new VA examination to address the current severity of this condition. SMC for Loss of Use of Right Hand A higher rate of SMC under 38 U.S.C.A. § 1114(k) (West 2012) is payable if a Veteran, as the result of service connected disability, has loss of use of one hand. The Veteran argues that his service-connected cubital tunnel syndrome, right elbow, dominant has resulted in the loss of use of his right hand. After a review of the record, the evidence is insufficient to determine whether the Veteran's service-connected disability has resulted in the loss of use of his right hand because there is no competent medical evidence as defined by 38 C.F.R. § 3.159(a)(1) (2013) that answers the question. The Board finds that this is a medical determination that cannot be substantiated by competent lay evidence and the Board cannot make this determination on its own. Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (the Board must consider independent medical evidence to support its findings rather than provide its own medical judgment). Where there is insufficient competent medical evidence to make a fully informed decision on the claim, the Board is required to obtain a medical examination or medical opinion. 38 C.F.R. § 3.159(c) (4) (2013). Such must be accomplished on remand. Bilateral Ruptured Eardrums The Veteran seeks service connection for bilateral ruptured eardrums, which he contends initially manifested in service. Specifically, he contends that his eardrums ruptured in-service and that he suffers pain and loss of hearing as a result. In a December 2010 rating decision, the Veteran was granted service connection for hearing loss in his right ear, as well as tinnitus in the right ear secondary to the service-connected hearing loss in the right ear. In the same rating decision, the Veteran was denied service connection for hearing loss in his left ear. This rating decision, while discussing the Veteran's right ear, states that the Veteran was exposed to "military acoustic trauma as evidenced by a significant puretone threshold shift in-service" and that the Veteran's hearing loss "has been linked to that acoustic trauma". As a result, it is conceded that the Veteran was exposed to acoustic trauma while in-service. VA is required to seek a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the current disability may be associated with the in-service event, injury or disease. 38 C.F.R. § 3.159(c) (4) (2013). Here, the current medical evidence establishes that the Veteran has bilateral ruptured eardrums. See VA medical records from September 2007 and November 2007. The Veteran's STRs show treatment in August 1969 for inflammation and drainage of his right ear and it has been conceded that the Veteran was exposed to acoustic trauma. The question therefore remains whether the evidence indicates that there may be an association. Such an indication will be found when there is "medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran has asserted that he has had symptoms of ear pain since service. Thus, the Board finds that the Veteran has met the guidance set forth in McLendon and the Veteran must be afforded an examination, and an opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to determine the current severity of his service-connected cubital tunnel syndrome, right elbow, dominant. All indicated evaluations, studies, and tests deemed necessary must be accomplished and all findings reported in detail. In addition, the examiner must address whether the Veteran, as a result of his service-connected cubital tunnel syndrome, right elbow, dominant, has loss of use of his right hand. In formulating an opinion, the VA examiner must consider that under 38 C.F.R. §§ 3.350(a) (2), 4.63 (2013): Loss of use of a hand will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, could be accomplished equally well by an amputation stump with prosthesis; for example: complete ankylosis of two major joints of an extremity will constitute loss of use of the hand. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. 2. Afford the Veteran an appropriate VA ear disease examination to determine the etiology of his bilateral ruptured eardrums. All indicated evaluations, studies, and tests deemed necessary must be accomplished and all findings reported in detail. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's bilateral ruptured eardrums had their clinical onset during active service or are related to any in-service disease, event, or injury. The examiner is directed to assume that the Veteran was exposed to acoustic trauma during service. Attention is invited to an August 1969 STR regarding the Veteran's right ear. The examiner must provide a thorough rationale for his or her conclusion. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Next, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the requested examiner's opinions do not answer or sufficiently answer the questions posed, return the case to the examiner for corrective action. (CONTINUED ON NEXT PAGE) 4. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence and legal authority. In addition, adjudicate the claim for a higher rate of special compensation (SMC) under 38 U.S.C.A. § 1114(k) (West 2012). If the benefits sought on appeal remain denied, furnish to the Veteran and his representative a supplemental statement of the case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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).