Citation Nr: 1510582 Decision Date: 03/13/15 Archive Date: 03/24/15 DOCKET NO. 13-11 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased rating for a lower back disability, currently evaluated as 20 percent disabling. 2. Entitlement to a compensable rating for a right thumb disability. 3. Entitlement to an increased rating for a right knee disability, currently evaluated as 10 percent disabling. 4. Entitlement to a compensable rating for left ear hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from December 1970 to February 1991. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington which denied entitlement to an increased rating for a lower back disability, then rated at 10 percent; entitlement to a compensable rating for a right thumb disability; entitlement to an increased rating for a right knee disability; and entitlement to a compensable rating for left ear hearing loss. In July 2012, a Decision Review Officer (DRO) granted an increase in rating to 20 percent for the lower back disability. The Veteran then filed a substantive appeal in September 2012. In February 2015, the RO granted service connection for bilateral hearing loss, and assigned an initial rating of 10 percent. No appeal from this decision has been initiated by the Veteran. As this action represents a full grant of the benefits sought on appeal regarding the Veteran's hearing loss, the matter is formally dismissed below. In July 2014, the Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing held at the RO; a transcript of that hearing is of record. At the hearing, the Veteran submitted additional evidence along with a waiver of RO consideration of this evidence. The Board notes that this appeal was processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) claims processing system. In addition to the VBMS file, the Veteran has a paperless, electronic file in Virtual VA. Except for VA examination reports from 2012 and 2014 and the transcript of the September 2014 hearing, the Veteran's Virtual VA file contains documents that are duplicative of those already associated with his VBMS file, or irrelevant to the claims on appeal. The Board's disposition of the claim for entitlement to a compensable rating for left ear hearing loss is set forth below. The remaining claims for an increased rating in excess of 20 percent for a low back disability, entitlement to a compensable rating for a right thumb disability, and an increased rating in excess of 10 percent for a right knee disability, are addressed in the remand following the order; these issues are being remanded to the agency of original jurisdiction (AOJ) for further action. VA will notify the Veteran when further action, on his part, is required. FINDING OF FACT In a February 2015 rating decision, the RO granted service connection for bilateral hearing loss and assigned an initial rating of 10 percent. CONCLUSION OF LAW As the February 2015 award of service connection for bilateral hearing loss and assignment of an initial rating of 10 percent represents a grant of the benefit sought on appeal with respect to the Veteran's claim for a compensable rating for left ear hearing loss, there remains no case or controversy with respect to that issue affecting the provision of benefits by VA over which the Board may exercise jurisdiction. 38 U.S.C.A. §§ 511, 5107, 7104 (West 2014); 38 C.F.R. §§ 19.4, 19.5, 20.101 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. 38 U.S.C.A. § 511(a); 38 C.F.R. § 20.101(a). One of the principal functions of the Board is to make determinations of appellate jurisdiction. 38 C.F.R. § 19.4. The Board may address questions pertaining to its jurisdictional authority to review a particular case or issue. 38 C.F.R. § 20.101(d). Although the Veteran perfected an appeal to the Board with respect to the September 2008 denial of a compensable rating for left ear hearing loss, in a subsequent rating decision issued in February 2015, service connection was granted for bilateral hearing loss and a 10 percent rating assigned. Under these circumstances, the Board finds that the claim for a compensable rating for left ear hearing loss, which was formerly in appellate status prior to February 2015, has been granted by the decision of the lower adjudicative body, fully resolving the Veteran's appeal as to that matter. Hence, there is no longer any case or controversy pending before the Board as contemplated by 38 U.S.C.A. §§ 7104, 7105 and 38 C.F.R. §19.4. In the absence of any justiciable question, the appeal of the claim for a compensable rating for left ear hearing loss must be dismissed. ORDER The appeal as to the claim for a compensable rating for left ear hearing loss is dismissed. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims for an increased rating in excess of 20 percent for a lower back disability, entitlement to a compensable rating for a right thumb disability, and an increased rating in excess of 10 percent for a right knee disability, so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014). The Board notes that the Veteran was last afforded a VA examination in February 2012 in order to determine the current nature and severity of his service-connected lower back disability and right knee disability. In April 2014, the Veteran was afforded a VA examination to evaluate the severity of his right thumb disability. However, at the September 2014 hearing, the Veteran described increased symptoms or worsened symptoms with regard to each of his service connected disabilities. Specifically, as regards the lower back disability, the Veteran testified that he experienced an overall increase in back pain, and problems with bending over. He testified that the pain is nearly constant, to the point that he is prevented from partaking in certain activities, such as recreational walking. The Veteran described pain and tingling in his lower extremities and indicated that, since his VA examination in 2012, there had been an overall worsening of his back condition. The Veteran testified that his right thumb disability had worsened since the April 2014 examination. He stated that a few months prior to the hearing, he experienced a loss of grip and the inability to open a bottle using his thumb. The Veteran also indicated that he was no longer able to partake in his long-standing hobby of drumming, as in the past few months he had lost the grip and control necessary to do so. The Veteran described weakness in his thumb, and indicated he was unable to move his thumb without pain. Finally, the Veteran testified as to the condition of his right knee disability. He indicated that, since his last examination, his knee disability had worsened. Specifically, the Veteran testified, there was an increase in pain and an increase in the knee failing, due either to intense pain or the joint giving out. The Veteran described incidents of the knee disability causing him to fall, and his efforts to minimalize falls through the occasional employment of knee braces, as well as altering his gait. As worsening symptomatology has been described since his last VA examinations, the Veteran should be afforded new VA examinations to determine the current nature and severity of his service-connected lower back disability, right thumb disability, and right knee disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). In addition, the Board notes that the Veteran's claims file contains medical records from the VA Community Based Outpatient Clinic located in Mount Vernon, Washington, dated through May 2014. On remand, efforts should be made to obtain updated records of any VA treatment that the Veteran may have undergone since that time, in order to ensure that his claim is adjudicated on the basis of an evidentiary record that is as complete as possible. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2014). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). Finally, the record reflects there may be other outstanding treatment records. At the September 2014 hearing, the Veteran testified that he received care at the Naval Hospital at Oak Island, Washington. The claims file contains records from the hospital dated through April 2012. On remand, updated records should be obtained and associated with the claims file. Therefore, while on remand, the Veteran should be given an opportunity to identify all VA or non-VA healthcare providers that have treated him for his lower back disability, right thumb disability, and right knee disability, and, thereafter, such identified records should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. Furnish to the Veteran a letter requesting that he provide information and, if necessary, authorization, to enable the AOJ to obtain any additional VA or non-VA treatment records pertinent to the claim on appeal. Specifically request that the Veteran provide, or provide appropriate authorization so as to allow VA to obtain, records from the Naval Hospital Oak Island, as well as any outstanding private records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding treatment records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his lower back disability. After examining the Veteran, reviewing the claims file, and conducting any testing deemed necessary, the examiner should fully describe any and all functional deficits associated with the Veteran's service-connected lower back disability. The examiner should discuss all findings in terms of the diagnostic codes, particularly Diagnostic Code 5242. The pertinent rating criteria must be provided to the examiner. The findings reported must be sufficiently complete to allow for rating. The examination report must include ranges of motion of the lumbar spine, with notations as to the degree of motion at which the Veteran experiences pain. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty, then the examiner should so indicate. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups of the lumbar spine. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty, then the examiner should so indicate. 3. Also arrange to have the Veteran scheduled for an examination of his right thumb. After examining the Veteran, reviewing the claims file, and conducting any testing deemed necessary, the examiner should fully describe any and all functional deficits associated with the Veteran's service-connected right thumb disability. The examiner should first record the range of motion observed on clinical evaluation, in terms of how close the Veteran can come to touching the thumb pad to the fingers (in inches or centimeters), with the thumb attempting to oppose the fingers. The examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups of the thumb; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. If the thumb is ankylosed, that fact should be specifically noted. If present, the examiner should indicate whether ankylosis is favorable or unfavorable; whether it is of such severity so as to be the functional equivalent of amputation of the thumb; and whether ankylosis of the thumb results in limitation of motion of other digits or overall function of the hand. 4. Arrange for the Veteran to undergo VA orthopedic examination to assess the severity his right knee disability. After examining the Veteran, reviewing the claims file, and conducting any testing deemed necessary, the examiner should fully describe any and all functional deficits associated with the Veteran's service-connected right knee disability. The examiner should conduct range of motion testing of the right knee (expressed in degrees). The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the knee. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the right knee due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. 5. After completing each of the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for a response. The Veteran has the right to submit additional evidence and argument on the matter or 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 2014). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs