Citation Nr: 1619086 Decision Date: 05/11/16 Archive Date: 05/19/16 DOCKET NO. 12-08 027A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a bilateral hip disability, to include as secondary to left knee disability. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a bilateral ankle disability, to include as secondary to left knee disability. 3. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a right knee disability, to include as secondary to left knee disability. 4. Entitlement to service connection for a right ring finger scar. 5. Entitlement to service connection for a left knee disability. 6. Entitlement to an initial compensable disability rating for a bilateral hearing loss disability. 7. Entitlement to an initial disability rating in excess of 10 percent for tinnitus. REPRESENTATION Veteran represented by: Kenneth L. LaVan, Esq. ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The appellant was a member of the United States Marine Corps Reserves with periods of active duty for training (ACDUTRA) from April 1981 to February 1982 and from May 1984 to September 1984. The appellant has been determined to qualify for status as a Veteran. Notably, he was service-connected for a bilateral hearing loss disability and tinnitus based on in-service noise exposure during his time in the Marine Corps Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2009 and May 2012 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida. On the Veteran's substantive appeal dated April 2012, he requested a hearing before a Veterans Law Judge. His claims were thereafter remanded in June 2015 in order to be scheduled for a Board hearing. However, in a statement dated October 2015, he cancelled his hearing request. Accordingly, his request for a hearing is considered to be withdrawn and his claims will be reviewed based on the evidence of record. See 38 C.F.R. § 20.704(e) (2015). With respect to the Veteran's bilateral hip disability, bilateral ankle disability, right ring finger scar, right knee disability, and left knee disability claims, the Board notes that the Veteran initially filed claims for service connection for these disabilities in August 1985. These claims were thereafter denied by the RO in July 1986. Although the Veteran filed a timely notice of disagreement with the July 1986 denial of these claims, he did not complete his appeal with the filing of a timely substantive appeal (VA Form 9 or similar) following readjudication of his claims in an April 1987 statement of the case. Therefore, the July 1986 rating decision became final. The Veteran thereafter filed claims to reopen his previously denied service connection claims in October 2009 and December 2010 and the denials of these claims were continued in the above-referenced December 2009 and May 2012 rating decisions. During the pendency of the current appeal, the Board observes that outstanding service treatment records were associated with the claims folder. These treatment records consist, in pertinent part, of a September 1981 treatment record that documents a tendon laceration on the Veteran's right ring finger. Also, a treatment record dated July 1982 documents the Veteran's complaint of left knee pain and assessment of chondromalacia. Further, a February 1986 service examination notes the Veteran's complaint of right knee pain. Crucially, it does not appear that the aforementioned service treatment records documenting treatment for the Veteran's right knee, left knee, and right ring finger were of record at the time of the July 1986 rating decision and the April 1987 statement of the case. In this regard, these decisions do not reference the treatment in service for the right ring finger, right knee, and left knee. Indeed, it appears that the only service treatment records available at the time of the July 1986 rating decision and April 1987 statement of the case were the Veteran's February 1981 enlistment examination and dental records. Pertinently, a February 1986 response from the service department indicates that only the Veteran's dental records and February 1981 enlistment examination were submitted to the RO's request for service treatment records. As such, the Board finds that the aforementioned service treatment records were not associated with the claims folder at the time of the last final denial of these claims in July 1986. Under 38 C.F.R. § 3.156(c)(1) (2015), "at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim ... Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury or disease ..." As indicated above, the Board finds that the service treatment records discussed above were not associated with the Veteran's claims folder when his service connection claims for right ring finger scar, right knee disability, and left knee disability were last considered by the RO. Further, with regard to the records documenting treatment for the tendon laceration to the right ring finger in September 1981 and the finding of chondromalacia of the left knee in July 1982 which were during the Veteran's first period of ACDUTRA and between his periods of ACDUTRA, respectively, the Board finds that these service treatment records are clearly relevant and of probative value to his right ring finger scar and left knee disability claims, as it demonstrates evidence of a relationship between a right ring finger scar and left knee disability and the Veteran's service. The Board will therefore reconsider these claims and is recharacterizing the issues on appeal to entitlement to service connection for a right ring finger scar and a left knee disability pursuant to 38 C.F.R. § 3.156(c). The Board further notes that although the February 1986 service treatment record documents the Veteran's complaint of right knee pain, there is no indication that this is relevant to his right knee disability claim beyond what was already of record at the time of the July 1986 rating decision. Notably, the Veteran had already claimed a right knee disability when filing his service connection claim in August 1985, and the February 1986 treatment record does not indicate a relationship between a current right knee disability and periods of ACDUTRA from April 1981 to February 1982 or May 1984 to September 1984. Pertinently, the available service treatment records during these periods continue to be absent complaint of or treatment for a right knee disability. Also, the outstanding service treatment records that were associated with the claims folder after the July 1986 rating decision do not pertain to the Veteran's previously denied bilateral hip disability and bilateral ankle disability. Accordingly, the Board will not reconsider the Veteran's bilateral hip disability, bilateral ankle disability, and right knee disability claims. The Board notes that evidence has been associated with the Veteran's claims folder included with a waiver of RO consideration. The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All records in such files have been considered by the Board in adjudicating this matter. The issues of whether new and material evidence has been received to reopen previously denied claims for a right knee disability, bilateral hip disability, and bilateral ankle disability as well as entitlement to service connection for a left knee disability and entitlement to an increased disability rating for a bilateral hearing loss disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has a right ring finger scar that is related to his ACDUTRA. 2. The Veteran's service-connected tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260, and there is no evidence to support an extraschedular rating. CONCLUSIONS OF LAW 1. The Veteran's right ring finger scar was incurred during ACDUTRA. 38 U.S.C.A. §§ 1101, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). 2. There is no legal basis for the assignment of an evaluation in excess of 10 percent for tinnitus. 38 U.S.C.A. §1155 (West 2014); 38 C.F.R. §4.87, Diagnostic Code 6260 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to service connection for a right ring finger disability and entitlement to an increased initial disability rating for his service-connected tinnitus. In the interest of clarity, the Board will discuss certain preliminary matters. The issues on appeal will then be analyzed, and a decision rendered. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, and 5126 (West 2014), was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2015). In this case, the Board is granting in full the right ring finger scar benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed as to this issue. With respect to the Veteran's increased rating claim for tinnitus, in the instant case, the facts are not in dispute. Resolution of the appeal is dependent on interpretation of the regulations pertaining to the assignment of disability ratings for tinnitus. As will be shown below, the Board finds that the Veteran is already receiving the maximum disability rating available for tinnitus under the applicable rating criteria. Furthermore, regardless of whether the Veteran's tinnitus is perceived as unilateral or bilateral, the outcome of this appeal does not change. Therefore, because no reasonable possibility exists that further notice or assistance would aid in substantiating this claim, any deficiencies of VCAA notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). Service connection for right ring finger scar The Veteran contends that he has a scar on his right ring finger that is related to a laceration that he sustained during ACDUTRA in the Marine Corps Reserves. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2014). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2015). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2015). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). "Active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training." 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Service connection may be also granted only for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA. See 38 U.S.C.A. § 101(22), (24); 38 C.F.R. § 3.6. As to current disability, it is undisputed that the Veteran has a scar on his right ring finger. In particular, an October 1985 VA examination report documents a half-inch scar over the dorsum of the terminal interphalangeal joint of the right ring finger. With regard to evidence of an in-service incurrence of a disease or injury, a September 1981 service treatment record documents treatment for a tendon laceration to the Veteran's right ring finger. The treatment record noted that the laceration was not repaired. Based on the service treatment record documenting treatment for the laceration, the Board finds that there is evidence of in-service injury. With respect to nexus, for reasons expressed immediately below the Board finds that the medical evidence in this case shows that there exists a contributory relationship between the Veteran's ACDUTRA and his current right ring finger scar, and that service connection is therefore warranted as to this claim. Specifically, the Veteran was afforded a VA examination for his right finger scar in October 1985. Pertinently, the VA examiner noted the Veteran's in-service treatment for the tendon laceration to the right ring finger. After examination of the Veteran and consideration of his medical history, the VA examiner assessed the Veteran with a scar of the right ring finger and noted that the Veteran has been left with difficulty in straightening the terminal interphalangeal joint of the right ring finger. The VA examiner therefore indicated that the Veteran's had residuals of the laceration injury to include the current scar on the finger. The October 1985 VA examination report was based upon a thorough examination of the Veteran and thoughtful analysis of the Veteran's entire history and medical condition. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Pertinently, the Board notes that there is no medical evidence which demonstrates the Veteran's right ring finger scar is not related to his period of ACDUTRA from April 1981 to February 1982. The United States Court of Appeals for Veterans Claims (Court) has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted. The Court specifically indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The Board therefore finds that the competent and probative evidence of record indicates the Veteran's right ring finger scar is related to his first period of ACDUTRA. The nexus element of service connection has accordingly been satisfied. In summary, for reasons and bases expressed above, the Board concludes that service connection for a right ring finger scar is warranted. The benefit sought on appeal is granted. Higher Evaluation for Tinnitus Tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, note 2 (2015). In Smith v. Nicholson, 19 Vet. App. 63 (2005), the United States Court of Appeals for Veterans Claims (Court) held that the pre-1999 and pre-June 13, 2003 versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit) and stayed the adjudication of tinnitus rating cases affected by the Smith decision. In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b) and 38 C.F.R. § 4.87, Diagnostic Code 6260, which limits a veteran to a single schedular disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. Subsequently, the stay of adjudication of tinnitus rating cases was lifted. The maximum schedular rating available for tinnitus is 10 percent. 38 C.F.R. § 4.87, Diagnostic Code 6260. See 38 U.S.C.A. § 1155 (West 2014). No arguments have been raised, nor evidence submitted or otherwise obtained, which raises the issue of entitlement to an extraschedular rating. As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for tinnitus in each ear, the Veteran's appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to service connection for a right ring finger scar is granted. Entitlement to an initial rating in excess of 10 percent for service-connected tinnitus is denied. REMAND With respect to the Veteran's claims of whether new and material evidence has been received to reopen previously denied claims of entitlement to service connection for bilateral hip and bilateral ankle disabilities and entitlement to service connection for right and left knee disabilities, the Board observes that not all of the Veteran's service treatment records are associated with the claims folder. As discussed above, in February 1986, the RO requested the Veteran's service treatment records from the service department and in a subsequent response dated February 1986, the service department sent only the Veteran's dental records and his February 1981 service enlistment examination. In November 2011, in conjunction with the claims currently on appeal, the RO requested the Veteran's complete service treatment records from the service department. In a response dated November 2011, the service department enclosed copies of dental records as well as treatment records from 1981 and 1982 which are located in the Veteran's Virtual VA claims folder. No records from 1984 were sent. The Board notes, however, that service treatment records from 1986 and 1987 were subsequently obtained. Additionally, the Social Security Administration (SSA) forwarded copies of medical records in connection with the Veteran's claim for SSA disability benefits which included some service treatment records from 1981 and 1982. In a letter dated February 2012, the RO informed the Veteran that his service treatment records from 1984 could not be obtained, and that he should submit any service treatment records in his possession. The Board observes that the Veteran did not submit any treatment records from 1984. However, in the February 2012 letter, the RO did not inform the Veteran of alternative evidence that he may submit in lieu of the service treatment records to substantiate his claims. See M21-1, Part III, Subpart iii, Chapter 2, Section E.2.b. Therefore, the Veteran should be informed of such on remand. The Board also notes that in a statement dated March 2010, the Veteran's attorney reported that the Veteran underwent surgery on his left knee at the Homestead Air Reserve Base in Homestead, Florida in 1984. The Board observes that these surgery records are not associated with the claims folder, and no attempt has been made by the RO to obtain these specific records from the Homestead Air Reserve Base. Therefore, on remand, all outstanding treatment records from Homestead Air Reserve Base from 1984, to include surgery records pertaining to the Veteran's left knee should be obtained. The Board further notes that the Veteran's DD 214s verify his ACDUTRA in the Marine Corps Reserves from April 1981 to February 1982 and from May 1984 to September 1984. As discussed above, there are service treatment records from 1986 and 1987 associated with the claims folder. It is unclear as to whether the Veteran served on ACDUTRA or inactive duty for training (INACDUTRA) during this period. Indeed, the Veteran's service personnel records are not associated with the claims folder. As such, on Remand, the AOJ should verify the dates of the Veteran's periods of active service, if any, as well as all periods of ACDUTRA and INACDUTRA and request copies of any pertinent outstanding service treatment records during these periods of service. With regard to the Veteran's claims of entitlement to service connection for a left knee disability, as discussed above, a service treatment record dated July 1982 documents the Veteran's complaint of left knee pain and assessment of chondromalacia. Also, a July 1987 service treatment record notes the Veteran's complaints of left knee pain since 1982. Although the current medical evidence of record is absent a left knee disability, the Board finds that the Veteran's post-service complaints of left knee pain as well as the in-service finding of chondromalacia indicate that he may have a current left knee disability that is related to his service. There is no evidence currently associated with the Veteran's VA claims folder that offers an opinion as to a possible causal relationship between the Veteran's claimed left knee disability and his service. As there is evidence indicating such relationship, the Board concludes that a VA examination and opinion is necessary to determine whether the Veteran has a current left knee disability that is related to his service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, with regard to the Veteran's claim of entitlement to an initial compensable disability rating for a bilateral hearing loss disability, the Board observes that he underwent an audiological evaluation, to include audiometric testing, at the VA Medical Center in Orlando, Florida on August 28, 2015. However, a report of the audiogram was not associated with the claims folder. Indeed, a notation was made that access to the audiogram is available in the "Audiogram Display module under Tools menu." As this audiogram would be of probative value to the Veteran's increased rating claim, the Board finds that the procurement of such pertinent VA medical reports is required. The Board also notes that a September 2015 VA audiological treatment record from the Orlando VA Medical Center notes that the Veteran was to appear for a 6 week follow-up after he was fitted for hearing aids. However, there are no VA audiological treatment records dated subsequent to the September 2015 audiological evaluation. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). In light of the foregoing, the Board finds that an attempt should be made to identify and associate the aforementioned records with the Veteran's claims folder. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's service personnel records and verify all periods of the Veteran's active service, ACDUTRA and/or INACDUTRA and obtain outstanding service treatment records covering such periods of service. 2. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims remanded herein. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of whether the Veteran responds, request any records from the Homestead Air Reserve Base, to include any surgical/in-patient treatment from 1984. All attempts to secure this evidence must be documented in the claims folder. If, after making reasonable efforts to obtain named records the records are not able to be obtained, notify the Veteran and (a) identify the specific records that were unable to be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claims. The Veteran must then be given an opportunity to respond. 3. Notify the Veteran of alternate sources of evidence that can supplement the available records in light of the unavailability of his service treatment records from 1984. See M21-1, Part III, Subpart iii, Chapter 2, Section E.2.b. He must then be given an opportunity to respond. 4. Request any outstanding VA treatment records pertaining to the Veteran's claims remanded herein, to include an audiogram from VA audiological evaluation dated August 28, 2015 as well as audiological treatment records dated after September 2015 from the VA Medical Center in Orlando, Florida. All attempts to secure this evidence must be documented in the claims folder. 5. Thereafter, schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the nature of his left knee disability. The claims file, including a copy of this REMAND, must be made available to the examiner for review. Based on the review and the examination, the examiner should respond to the following: a. Whether the Veteran currently has a left knee disability. In identifying such, the examiner should address the Veteran's service treatment record dated July 1982 assessing chondromalacia of the left knee. b. If the Veteran has a current left knee disability, whether it is at least as likely as not (50 percent probability or more) that the Veteran's diagnosed left knee disability had its onset in service, or is otherwise etiologically related to any period of ACDUTRA service. The examiner should also address the July 1982 service treatment record assessing chondromalacia of the left knee as well as any treatment records dated 1984 from the Homestead Air Force Base documenting left knee surgery, if obtained as a result of this remand. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 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. 6. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his attorney should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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). ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs