Citation Nr: 1342391 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 11-03 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for post-operative left hip disorder. 2. Entitlement to a compensable initial evaluation for a left knee disorder, status post fracture of the proximal fibula. 3. Entitlement to a compensable initial evaluation for scar, status post anterior decompression and fusion of the cervical spine. 4. Entitlement to a compensable initial evaluation for right ear hearing loss. 5. Entitlement to a compensable initial evaluation for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from May 1999 to August 2009. The appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND At his December 2012 hearing before the Board, the Veteran stated that the disorders on appeal had increased in severity since he was last examined prior to his service separation in August 2009. He testified at the hearing that he experienced significant symptomatology involving pain and limitation of activity as associated with his left hip status post trauma and surgery, his left knee status post fracture of the proximal fibula, and his cervical surgical scar. He also reported using a knee brace, a cane, and oxycodone for pain associated with the hip and knee, as wells as the use of a companion/medical assistance dog, which aided with his ambulation. The Veteran also reported significant hearing impairment associated with his service-connected right ear hearing loss. At his hearing the Veteran informed that he received treatment following service at the Fayetteville VA Medical Center (VAMC), or in cases of emergencies he sought care at Ft. Bragg. Hence, any additional treatment records should be sought from these sources. In his substantive appeal received in February 2011, the Veteran expressed disagreement with the initial rating assigned with the RO's grant in December 2010 of service connection for sleep apnea. Hence, the substantive appeal serves as a notice of disagreement as to that issue. The RO has yet to issue a responsive statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. Regardless of the Veteran's response, the RO must attempt to obtain all VA treatment records, to include records from the Fayetteville VAMC, as well as records from Ft. Bragg. All attempts to secure this evidence must be documented in the evidence of record by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Issuance of a statement of the case and notification of the Veteran's appellate rights on the issue of entitlement to an initial compensable evaluation for sleep apnea, is necessary. 38 C.F.R. § 19.26 (2013). The Veteran and his representative are reminded that to vest the Board with jurisdiction over this issue, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2013). If the Veteran perfects the appeal as to this issue, the case must be returned to the Board for appellate review. 3. Thereafter, the Veteran must be afforded an appropriate VA examination to determine the current severity of his service-connected post-operative left hip disability and left knee disability status post fracture of the proximal fibula. All Virtual VA records must be made available to the examiner, and the examiner must specify in the examination reports that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA that were reviewed. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner must conduct full range of motion studies on the service-connected left hip and left knee. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected left hip and left knee. The report must be typed. 4. The Veteran must be afforded an appropriate VA examination to determine the current severity of his service-connected right ear hearing loss. All Virtual VA records must be made available to the examiner, and the examiner must specify in the examination reports that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA that were reviewed. All pertinent symptomatology and findings must be reported in detail. All indicated diagnostic tests and studies, to include an audiogram, must be accomplished. Specifically, the results of the audiological evaluation must state, in numbers, the findings of puretone decibel loss at 500, 1000, 2000, 3000, and 4000 Hertz, provide the puretone threshold average; and must also state the results of the word recognition test, in percentages, using the Maryland CNC test. The VA examiner must also describe the functional effects of the Veteran's service-connected right ear hearing loss. 5. Thereafter, the Veteran must be afforded an appropriate VA examination to determine the current severity of his service-connected scar, status/post anterior decompression and fusion of the cervical spine. All Virtual VA records must be made available to the examiner, and the examiner must specify in the examination reports that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA that were reviewed. All necessary special studies or tests are to be accomplished. The examiner should specifically note whether the scar is superficial, unstable, poorly nourished, with repeated ulceration, and/or tender and painful on objective demonstration. For VA adjudication purposes, a superficial scar is one not associated with underlying soft tissue damage, and an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. The size, both width and length, of the scar must be measured and reported. 6. The RO must notify the Veteran that it is his responsibility to report for the VA examinations scheduled and to cooperate in the development of the claims remanded herein. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655 (2013). In the event that the Veteran does not report for an examination, documentation must be obtained that shows that notice scheduling the examination was sent to his last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be associated with his claims file. 7. After the requested development has been completed, the RO must review the examination reports to ensure that they are in complete compliance with the directives of this Remand. If a report is deficient in any manner, the RO must implement corrective procedures at once. 8. Once the above actions have been completed, the RO must re-adjudicate the Veteran's claims on appeal, taking into consideration any newly acquired evidence. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).