Citation Nr: 1603738	
Decision Date: 02/03/16    Archive Date: 02/11/16

DOCKET NO.  14-38 833A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD).

2.  Entitlement to an evaluation in excess of 20 percent for compression fracture at L2 of the lumbar spine with degenerative disc disease.

3.  Entitlement to an evaluation in excess of 10 percent for type II diabetes mellitus.

4.  Entitlement to an evaluation in excess of 10 percent for tinnitus. 

5.  Entitlement to a compensable evaluation for left otitis media with ruptured tympanic membrane. 

6.  Entitlement to a compensable evaluation for left saphenous nerve entrapment. 

7.  Entitlement to a compensable evaluation for a bilateral hearing loss disability. 

8.  Entitlement to an evaluation in excess of 10 percent for left ankle with fixed clonus deformity and degenerative arthritis. 

9.  Entitlement to restoration of a disability rating of 30 percent for left ankle with fixed clonus deformity and degenerative arthritis, effective June 1, 2013.

10.  Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU). 


REPRESENTATION

Veteran represented by:	John R. Worman, Attorney at Law


ATTORNEY FOR THE BOARD

R. R. Watkins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 12, 1948 to November 9, 1959, and from November 25, 1959, to May 31, 1971.

These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2012 and March 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900I (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of:  entitlement to an evaluation in excess of 30 percent for PTSD; entitlement to an evaluation in excess of 20 percent for compression fracture at L2 of the lumbar spine with degenerative disc disease; entitlement to a compensable evaluation for a bilateral hearing loss disability; entitlement to an evaluation in excess of 10 percent for left ankle with fixed clonus deformity and degenerative arthritis; entitlement to restoration of a disability rating of 30 percent for left ankle with fixed clonus deformity and degenerative arthritis, effective June 1, 2013; and, entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Throughout the appeal period, the Veteran's type II diabetes mellitus has had no complications and has been controlled by a restricted diet.

2.  The Veteran's tinnitus has been assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260.

3.  Left otitis media with ruptured tympanic membrane was not manifested by chronic suppurative otitis media, mastoiditis, or choleastoma (or any combination) during suppuration, or with aural polyps.

4.  Left saphenous nerve entrapment has been manifested by moderate incomplete paralysis.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 10 percent for the service-connected type II diabetes mellitus have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.119, Diagnostic Code (DC) 7913 (2015).

2.  There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for the Veteran's tinnitus.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.87, DC 6260 (2015).

3.  The criteria for a compensable evaluation for left otitis media with ruptured tympanic membrane have not been met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.31, 4.87, DC 6200 (2015).

4.  The criteria for a compensable evaluation for left saphenous nerve entrapment have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.31, 4.123, 4.124, 4.124a, DC 8527 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

Regarding the tinnitus claim, the Board finds that no further action is necessary pursuant to The Veterans Claims Assistance Act of 2000 (VCAA).  As described below, the facts in this case are not in dispute and the Veteran's appeal must be dismissed as a matter of law.  Thus, the Board finds that any deficiency in VA's VCAA notice or development action pertaining to the tinnitus claim is harmless error.  Pratt v. Nicholson, 20 Vet. App. 252 (2006); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive).  

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  The VCAA applies to claims for increased evaluations for diabetes mellitus, left otitis media with ruptured tympanic membrane, and left saphenous nerve entrapment.
The RO provided pre-adjudication VCAA notice by a letter dated in September 2011.  The Veteran was notified of the evidence needed to substantiate the claims for increased ratings, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective dates of the claims.  

VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims.  Service treatment records, post-service treatment records, and lay statements have been associated with the record.  

The Veteran was afforded VA examinations in November 2011 and March 2012.  As the examinations included reviews of the pertinent medical history, clinical findings, and diagnoses, and were supported by medical rationale, the Board finds that the examinations are adequate to for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  Further, the Veteran has not reported that his diabetes mellitus, left otitis media with ruptured tympanic membrane, and left saphenous nerve entrapment have worsened since his last examinations nor does the evidence show that these disabilities underwent a material change to require a re-examination under 38 C.F.R. § 3.327 (2015).  

As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist.

II.  Disability Rating Principles 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4.  

The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).
In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  

Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).  

If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  Here the disabilities have not significantly changed during the appeal period and uniform evaluations are warranted.  

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one DC is duplicative of or overlapping with the symptomatology justifying an evaluation under another DC.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  

Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  

Any reasonable doubt regarding a degree of disability is resolved in favor of the veteran.  38 C.F.R. § 4.3.

A.  Diabetes Mellitus 

In a June 2003 rating decision, the AOJ granted service connection for type II diabetes mellitus and assigned a 10 percent evaluation, effective February 27, 2003 under DC 7913.

DC 7913 provides ratings for diabetes mellitus.  Diabetes mellitus requiring insulin and a restricted diet, or; oral hypoglycemic agent and a restricted diet, is rated 20 percent disabling.  Diabetes mellitus requiring insulin, a restricted diet, and regulation of activities is rated 40 percent disabling.  Diabetes mellitus requiring insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemia reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately rated, is rated 60 percent disabling.  Diabetes mellitus requiring more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemia reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately rated, is rated 100 percent disabling.  38 C.F.R. § 4.119.

Note (1) to DC 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913).  Noncompensable complications are considered part of the diabetic process under DC 7913.  Note (2) provides that, when diabetes mellitus has been conclusively diagnosed, the adjudicator is not to request a glucose tolerance test solely for rating purposes.  38 C.F.R. § 4.119.

As defined in DC 7913, "regulation of activities" means "avoidance of strenuous occupational and recreational activities."  Id.  The requirement of regulation of activities due to diabetes must be based on the clinical findings of a medical professional.  See Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). 

Because the rating criteria under DC 7913 are cumulative and successive, diabetes that does not meet the criteria at any one level of disability is precluded from the assignment of an increased evaluation at any higher level, since "each higher disability rating include[s] the criteria of each lower disability rating."  Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009) (citing Camacho, 21 Vet. App. at 366-67).  In other words, each rating for diabetes requires that all the criteria for any lower available ratings also be met.  It thus follows that section 4.7 of the regulations, which directs that the higher of two potentially applicable disability evaluations will be assigned when the disability more nearly approximates the higher rating, does not apply to DC 7913 given it successive and cumulative criteria.  Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013) (holding that section 4.7 cannot be used to circumvent the requirements for satisfying the criteria for a given rating under DC 7913 in light of its cumulative nature, and observing in this regard that "use of the conjunctive 'and'" in the criteria for a 40 percent rating indicates that "a veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation" notwithstanding section 4.7). 

In November 2011, the Veteran was afforded a VA examination to determine the severity of his type II diabetes mellitus.  The VA examiner indicated that the Veteran treated his type II diabetes mellitus solely with a restricted diet.  The Veteran was not required to regulate his activities to manage his diabetes.  The Veteran was required to visit his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than twice per month.  The Veteran had no complications due to his diabetes.

In March 2012, the Veteran was afforded another VA examination to determine the severity of his type II diabetes mellitus.  The VA examiner indicated that the Veteran treated his type II diabetes mellitus solely with a restricted diet.  The Veteran was not required to regulate his activities to manage his diabetes.  The Veteran was required to visit his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than twice per month.  He had not been hospitalized over the last 12 months for ketoacidosis or hypoglycemia.  The Veteran had no complications due to his diabetes.

VA treatment records confirm that the Veteran's type II diabetes mellitus is controlled through diet and that the Veteran does not take medication to control his diabetes.  
	
The Board has considered the Veteran's lay statements and acknowledges that the Veteran is competent to give evidence about what he has experienced or observed.  Layno v. Brown, 6 Vet. App. 465 (1994).  The Veteran has made vague assertions that he is entitled to an increased evaluation for his type II diabetes mellitus.  However, these assertions are probatively outweighed by the VA examination reports, which evaluated the severity of the Veteran's type II diabetes mellitus in great specificity.  Additionally, the VA examination reports were based upon interviews with the Veteran, examinations, and the VA examiners' medical expertise.    

The probative evidence of record is against a rating in excess of 10 percent for the Veteran's type II diabetes mellitus.  There is no probative evidence of record that the Veteran takes insulin or an oral hypoglycemic agent to control his type II diabetes mellitus, to warrant a higher disability rating.  See 38 C.F.R. § 4.119, DC 7913.

B.  Tinnitus

In a June 2003 rating decision the AOJ granted service connection for tinnitus and assigned a zero percent evaluation under DC 6260, effective March 1, 2003.  In an October 2003 rating decision, the AOJ found that clear and unmistakable error had been identified in its June 2003 rating decision.  The AOJ assigned a 10 percent evaluation for tinnitus under DC 6260, effective March 1, 2003.  38 C.F.R. § 4.87.

DC 6260 provides a maximum rating of 10 percent for recurrent tinnitus.  As such, the Veteran is currently in receipt of the maximum disability evaluation available for this disability under DC 6260.  38 C.F.R. § 4.87.
In summary, there is no legal entitlement to an initial rating in excess of 10 percent for tinnitus.  The Board has carefully reviewed the rating schedule and finds no other DC that would provide a basis to grant a higher evaluation for this disability.  In essence, the Veteran currently has the highest possible schedular rating provided for tinnitus.  Thus, the Board has no alternative but to deny the claim.  See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim must be denied due to an absence of legal entitlement).  Consequently, a rating in excess of 10 percent for tinnitus, on a schedular basis, is not warranted.  

C.  Otitis Media

In a June 1971 rating decision, the AOJ granted service connection for left otitis media with ruptured tympanic membrane and assigned a zero percent evaluation under DC 6200, effective June 1, 1971.  38 C.F.R. § 4.87.

DC 6200 provides a 10 percent disability rating for chronic suppurative otitis media, mastoiditis, or choleastoma (or any combination) during suppuration, or with aural polyps.  A Note to DC 6200 provides that hearing impairment, and complications such as labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of skull, are to be rated separately.  38 C.F.R. § 4.87.

In November 2011, the Veteran was afforded a VA examination to determine the severity of his otitis media.  Upon examination, there were no signs or symptoms attributable to chronic ear infection, inflammation, cholesteatoma, or chronic suppurative otitis media.  His ear canal was normal.  However, he had a perforated left tympanic membrane.  There were no benign or malignant neoplasm or mestatases.  The VA examiner commented that the Veteran's VA treatment records were silent regarding a left ear otitis media condition.

Based upon the forgoing, the Board finds that the Veteran's left otitis media with ruptured tympanic membrane does not warrant a compensable evaluation.  The Veteran's ear canal was normal, and there were no signs or symptoms attributable to chronic ear infection, inflammation, cholesteatoma, or chronic suppurative otitis media.
The Board has considered the Veteran's lay statements and acknowledges that the Veteran is competent to give evidence about what he has experienced or observed.  Layno, 6 Vet. App. at 465.  The Veteran has made vague assertions that he is entitled to an increased evaluation for his left otitis media with ruptured tympanic membrane.  However, these assertions are probatively outweighed by the VA examination report, which evaluated the severity of the Veteran's left otitis media with ruptured tympanic membrane in great specificity.  Additionally, the VA examination report was based upon an interview with the Veteran, an examination, a review of the Veteran's VA treatment records, and the VA examiner's medical expertise.    

The probative evidence of record is against a compensable disability rating for the Veteran's left otitis media with ruptured tympanic membrane.  There is no probative evidence of record that the Veteran is entitled to a compensable evaluation for left otitis media with ruptured tympanic membrane.  See 38 C.F.R. 
§ 4.87, DC 6200.

D.  Left Saphenous Nerve Entrapment

In a June 2003 rating decision, the AOJ granted service connection for left saphenous nerve entrapment and assigned a zero percent evaluation under DC 8527, effective March 1, 2003.  38 C.F.R. § 4.124a.

DC 8527 provides a 10 percent disability rating for severe to complete paralysis of the internal saphenous nerve.  38 C.F.R. § 4.124a.

In November 2011, the Veteran was afforded a VA examination to determine the severity of his left saphenous nerve entrapment.  The VA examiner diagnosed left saphenous nerve entrapment associated with residuals of fracture of the left ankle.  The Veteran reported pain in his left ankle when he walked.  Upon examination, the Veteran demonstrated intermittent moderate pain and paresthesias in his left lower extremity.  Muscle testing showed that the Veteran was able to move his left ankle and left knee against gravity.  There was no muscle atrophy.  Reflex testing showed hypoactive reflexes of the left ankle and left knee.  The Veteran had decreased sensation in his left lower leg, ankle, feet, and toes.  Electromyography (EMG) studies showed slight prolonged latency of the left superficial peroneal nerve and decreased amplitude of the left sural nerve, which was suggestive of neuropathy.

As stated previously, the Veteran is currently receiving a zero percent evaluation under DC 8527 for left saphenous nerve entrapment.  See 38 C.F.R. § 4.124a, DC 8527.  In determining the degree of neurologic impairment, the Board has considered the guidance contained in 38 C.F.R. §§ 4.120, 4.123, 4.124 and 4.124(a).  As instructed in section 4.120, there is an obligation to rate by comparison.  Here, the nerve has been identified and there is lay and medical evidence of decreased muscle strength, hypoactive reflexes, and sensory disturbance.  However, the Veteran can move his left lower extremities against gravity, the reflexes are not lost, his pain is moderate and intermittent, and there is no muscle atrophy.  (Compare 4.123 with 4.124).  Based upon the lay and clinical findings, the left saphenous nerve entrapment is manifested primarily by decreased sensation, intermittent pain, and hypoactive reflexes; however, the Veteran is able to move the affected extremity against gravity.  The left saphenous nerve entrapment is no more than moderate in degree.  The rating of zero percent is warranted for the Veteran's moderate incomplete paralysis of the internal saphenous nerve.  

The Board has considered the Veteran's lay statements and acknowledges that the Veteran is competent to give evidence about what he has experienced or observed.  Layno, 6 Vet. App. at 465.  The Veteran has made vague assertions that he is entitled to an increased evaluation for his left saphenous nerve entrapment.  However, these assertions are probatively outweighed by the VA examination report, which evaluated the severity of the Veteran's left saphenous nerve entrapment in great specificity.  Additionally, the VA examination report was based upon an interview with the Veteran, an examination, a review of the Veteran's VA treatment records, and the VA examiner's medical expertise.    

The probative evidence of record is against a compensable disability rating for the Veteran's left saphenous nerve entrapment.  There is no probative evidence of record that the Veteran is entitled to a compensable evaluation for left saphenous nerve entrapment.  See 38 C.F.R. § 4.124a, DC 8527.
III.  Extraschedular Consideration 

The above determinations are based on application of provisions of the VA's Schedule for Rating Disabilities.  38 C.F.R. Part 4.  However, the regulations also provide for exceptional cases involving compensation.  Pursuant to 38 C.F.R. 
§ 3.321(b)(1) (2014), the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1). 

The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008). 

If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008). 

If the criteria reasonably describe the claimant's disability level and symptomatology, then a veteran's disability picture is contemplated by the rating schedule.  The assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the AOJ or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). 

Here, because the schedular ratings for the Veteran's type II diabetes mellitus, otitis media, tinnitus, and left saphenous nerve entrapment fully address his symptoms,  referral to the VA Under Secretary for Benefits or the Director of Compensation and Pension Service for consideration of an extraschedular evaluation is not warranted.  Accordingly, referral of this case for consideration of extraschedular ratings is not warranted.  Id.; see also Bagwell, 9 Vet. App. at 337; Floyd v. Brown, 9 Vet. App. 88 (1996). 

Moreover, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual condition fails to capture all the service-connected disabilities experienced.   However, this is not an exceptional circumstance.  Thus, no basis for referring the case for an extraschedular consideration is presented in this case. 


ORDER

An evaluation in excess of 10 percent for type II diabetes mellitus is denied. 

An evaluation in excess of 10 percent for tinnitus is denied as a matter of law.

A compensable evaluation for left otitis media with ruptured tympanic membrane is denied. 
A compensable evaluation for left saphenous nerve entrapment is denied.



REMAND

The Veteran underwent his most recent VA PTSD examination in February 2012.  The VA examiner indicated that the Veteran's unemployability was not due to his PTSD, but due to his non-service-connected mild memory impairment and depression.  The examiner determined that the Veteran had two mental health diagnoses - PTSD and major depression.  He indicated that it was possible to determine which symptoms were attributable to each disorder.  In December 2015, the Veteran underwent a private examination to determine the severity of his PTSD.  The examiner indicated that the Veteran only had PTSD and that no other mental disorders had been diagnosed.  The examination reports that the Veteran's PTSD has worsened.  However, the examination is not adequate as it does not provide a rationale for why the Veteran does not have a separate non-service connected major depression.  Therefore a remand is necessary to determine the current severity of the Veteran's service-connected PTSD. 

In an October 2013 Report of General Information, the Veteran stated that he was going to resume treatment for his lumbar spine disability at the local VA Medical Center.  However, VA treatment records dated after April 4, 2012, have not been associated with the file.  Additionally, in a May 2014 statement, the Veteran asked to be re-evaluated for his bilateral hearing loss disability to determine whether his hearing had worsened or if he needed new hearing aids.  The Veteran's most recent VA audiological examination was in October 2011 and his most recent VA lumbar spine examination was in March 2012.  Therefore, a remand is necessary to obtain missing VA treatment records related to the Veteran's lumbar spine disability and to afford him VA examinations to determine the current severity of his lumbar spine and bilateral hearing loss disabilities. 

In a March 2013 rating decision, the AOJ reduced the Veteran's evaluation for residuals of fracture of the left ankle with fixed clonus deformity and degenerative arthritis from 30 percent to 10 percent, effective June1, 2003.  In April 2013, the Veteran submitted a notice of disagreement with the reduction.  A Statement of the Case (SOC) has not been issued regarding the reduction issue.  A remand is necessary to issue the Veteran an SOC regarding the propriety of his reduction.  See Manlicon v. West, 12 Vet. App. 238 (1999).

Lastly, claims for a TDIU and an increased evaluation for residuals of fracture of the left ankle with fixed clonus deformity and degenerative arthritis are inextricably intertwined with the claims being remanded - particularly the reduction issue.  See Parker v. Brown, 7 Vet. App. 116  (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated).  As the claims should be considered together, it follows that any Board action on the TDIU claim and the claim for an increased evaluation for residuals of fracture of the left ankle with fixed clonus deformity and degenerative arthritis, at this juncture, would be premature.

Accordingly, the case is REMANDED for the following actions:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  The AOJ should take all indicated action in order furnish the Veteran and his representative a SOC concerning his claim for entitlement to restoration of a disability rating of 30 percent for left ankle with fixed clonus deformity and degenerative arthritis, effective June 1, 2013.  The Veteran should be advised that he still needs to file a timely Substantive Appeal in response to the SOC to perfect an appeal concerning this claim to the Board.  38 C.F.R. §§ 20.200, 20.302(b).  The Veteran also should be advised of the time limit for perfecting the appeal.  Only if he perfects an appeal of this additional claim should it be returned to the Board for further consideration.
2.  Prior to obtaining any opinion, the Veteran's assistance should be obtained to ensure that copies of any outstanding records of pertinent medical treatment are identified and added to the claims file.

Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers.  With the Veteran's assistance obtain copies of any pertinent records and add them to the claims file.  Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c).  If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e).

3.  Schedule the Veteran for a VA examination to determine the current severity of his service-connected PTSD.  The VA examiner is asked to resolve the conflicting results obtained in the March 2012 VA examination and the December 2015 private PTSD examination.

3.  Schedule the Veteran for a VA examination to determine the current severity of his service-connected bilateral hearing loss disability.  

4.  Schedule the Veteran for a VA examination to determine the current severity of his service-connected compression fracture at L2 of the lumbar spine with degenerative disc disease.

5.  After completing the development above, readjudicate the claims on appeal in light of all additional evidence received.  If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a Supplemental SOC (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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).



______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs