Citation Nr: 1619397 Decision Date: 05/13/16 Archive Date: 05/19/16 DOCKET NO. 09-20 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral ankle disability. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2002 to April 2007. These matters come before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied claims for service connection for a bilateral ankle disability and hearing loss. Jurisdiction of those claims was subsequently transferred to the RO in Waco, Texas. The September 2007 rating decision also denied claims for service connection for a low back disability, neck disability, and headaches. Subsequently, a December 2007 rating decision granted service connection for back and neck disabilities, each assigned a 0 percent rating. The December 2007 rating decision also denied service connection for headaches. In a March 2008 notice of disagreement, the Veteran contested the denials of service connection, to include claims for ankle disabilities, hearing loss, and headaches, and the 0 percent rating for a neck disability, and initiated a new claim for service connection for tinnitus. In that same notice of disagreement, the Veteran expressed that he was satisfied with the rating for the service-connected back disability. As the Veteran expressed no additional disagreement to the rating for the back disability within one year of the December 2007 rating decision, that decision became final. A May 2012 rating decision granted service connection for tinnitus, and assigned a 10 percent rating. Since that rating decision, the VA has not received any notice of disagreement with that decision. Therefore, as the time to file a timely appeal has passed, the Board finds that decision is final, and not on appeal. An August 2013 rating decision granted a staged rating of 10 percent for the service-connected neck disability, effective May 26, 2011. An August 2013 statement of the case, continued the 0 percent rating for a neck disability prior to May 26, 2011. While this staged rating is not considered a full grant of benefit sought on appeal, the Board notes that no timely substantive appeal was filed after the statement of the case was issued. The Veteran and representative were properly notified in the letter accompanying the October 2013 statement of the case of the requirement to perfect an appeal by filing a timely substantive appeal to proceed with the appeal. As no substantive appeal was received, the Board finds that decision is final. An October 2013 rating decision granted service connection for headaches and assigned a 10 percent rating. The Veteran did not file a timely notice of disagreement to that rating assigned, and the rating is considered final, and not before the Board. The Veteran and representative presented testimony in a Board hearing before the undersigned Veterans Law Judge in March 2016. During the hearing, the Veteran, and representative, noted the issues for his bilateral ankle disability, hearing loss, tinnitus, back, neck, and headaches. With the exception of the Veteran's service connection claims for bilateral ankle disability and hearing loss, which are properly before the Board, the issues related to the Veteran back, neck, tinnitus, and headaches, which were all already service-connected prior to the hearing, are not on appeal. However, the Board finds that the arguments presented at the hearing can be construed as initiating new claims for increased ratings of service-connected neck, back, headache, and tinnitus disabilities. The Board does not have jurisdiction over those claim and they are referred to the Agency of Original Jurisdiction for appropriate action. The Board finds that the claims for service connection for bilateral ankle disabilities and bilateral hearing loss are the only claims properly before the Board for adjudication at this time. REMAND The Veteran was provided the most recent VA examination for hearing loss and bilateral ankle disabilities in October 2007, more than eight years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, further allegations and evidence of a worsening condition regarding both the Veteran's claimed disabilities have been set forth by the Veteran since that examination. Specifically, during his testimony at the hearing, both the Veteran and representative explicitly expressed that his ankle condition has become not only chronic, but also with increasing pain and instability. The VA treatment records, also show treatment and consistent complaint of ankle problems, such as instability and constant rolling on his ankles. Those medical records also show the Veteran receiving treatment with assistive devices such as ankle braces and shoe wedges to reduce the propensity for inversion sprains. The claim was previously denied because of the lack of evidence showing a current ankle disability. The evidence now suggests a current ankle disability and there is evidence of complaint and treatment in service for the ankles. Therefore, an examination is needed to determine whether any current ankle disability is related to service. The Veteran has also asserted that his hearing loss is worse than that measured by the 2007 VA examination. The claim was previously denied because the hearing loss did not meet the criteria for be a disability. 38 C.F.R. § 3.385 (2015). The Veteran now claims that his hearing loss meets those requirements. A contemporaneous examination is needed to make that determination. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the case is REMANDED for the following action: 1. Obtain all VA medical records that are not already of record and associate them with the record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran, to include records from any private treating physician. 3. Then, schedule the Veteran for a VA audiology examination. The examiner must review the claims file and must note that review in the report. The examiner is specifically asked to report on the nature and etiology of the claimed hearing loss, to include a current diagnosis. The examiner should opine as to whether any hearing loss disability is at least as likely as not (50 percent or greater probability) etiologically related to, caused by, or aggravated by service, to include any noise exposure during service. A complete rationale for any opinion expressed should be included in the examination report. 4. Then, schedule the Veteran for a VA examination of the ankles. The examiner must review the claims file and must note that review in the report. The examiner is specifically asked to report on the nature and etiology of the claimed bilateral ankle disability, to include a current diagnosis. For any diagnosed ankle disability of either ankle, the examiner should opine as to whether each disability is at least as likely as not (50 percent or greater probability) etiologically related to, caused by, or aggravated by service. The examiner should consider the complaint regarding the ankles during service and the current treatment for the ankles in making that opinion. A complete rationale for any opinion expressed should be included in the examination report. 5. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs