Citation Nr: 1645389 Decision Date: 12/02/16 Archive Date: 12/19/16 DOCKET NO. 09-23 042A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a low back disability. 3. Entitlement to a rating in excess of 10 percent for left thigh impairment, previously rated as postoperative myositis ossificans of the left thigh. 4. Entitlement to a rating in excess of 10 percent for limitation of extension of the left thigh, previously rated as postoperative myositis ossificans of the left thigh. 5. Entitlement to a rating in excess of 10 percent for limitation of flexion of the left thigh, previously rated as postoperative myositis ossificans of the left thigh. 6. Entitlement to a rating in excess of 10 percent prior to February 29, 2016 and in excess of 20 percent from February 29, 2016, for status-post surgery for osteochondroma distal tibiofibular ligament of the left leg and ankle. 7. Entitlement to a compensable rating for an incisional scar on the lateral aspect of the distal left leg. 8. Entitlement to a rating in excess of 10 percent for painful scars of the left thigh and left ankle. 9. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from September 1978 to September 1981. This case originally came before the Board of Veterans' Appeals (Board) on appeal of rating decisions dated April 2008 and May 2012 of the Department of the Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in June 2015. A transcript of that hearing is associated with the claims file. The Board remanded the claims on appeal for additional development in September 2015. At that time, the issues of on appeal consisted of (1) entitlement to a rating in excess of 10 percent for postoperative myositis ossificans of the left thigh; (2) entitlement to a rating in excess of 10 percent for status-post surgery for osteochondroma distal tibiofibular ligament of the left leg and ankle; and (3) entitlement to a compensable rating for an incisional scar on the lateral aspect of the distal left leg. Subsequently, by rating decisions dated March 2016, the Agency of Original Jurisdiction (AOJ) recharacterized postoperative myositis ossificans of the left thigh as left thigh impairment and granted separate 10 percent ratings for limitation of extension and for limitation of flexion of the left thigh, and a separate rating of 10 percent for painful scars of the left thigh and left ankle, effective February 29, 2016. Although the Veteran did not specifically disagree with these ratings, the Board finds that limitation of flexion, limitation of extension, and painful scars of the left thigh and ankle are part and parcel of the increased rating claims for the Veteran's left thigh, leg and ankle disabilities. The AOJ also increased the rating for status post surgery for osteochondroma distal tibiofibular ligament of the left leg and ankle from 10 percent to 20 percent from February 29, 2016, and created staged ratings. As this increase did not represent a complete grant of the benefits on appeal, the Veteran's claim for an increased rating for status-post surgery for osteochondroma distal tibiofibular ligament of the left leg and ankle remained in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). Additionally, in Rice v. Shinseki, the Court held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. In a February 2015 statement, the Veteran claimed that his impairments, to include due to service-connected disabilities, had become very painful and unbearable to perform any substantially gainful employment. In an April 2015 statement, he reiterated his medical conditions do not allow him to work full time in any job. In light of Rice, the issue of entitlement to a TDIU is properly before the Board, as listed in the title page of this decision. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In June 2015, the Board remanded the claims of service connection for bilateral hearing loss and for a low back disability to obtain VA nexus opinions. The Board found that the Veteran served in a field artillery unit and that there was post-service medical evidence of low back arthritis. Subsequently, the Veteran was provided VA examinations in November 2015. A VA audiologist provided an opinion that "[b]ased on the unknown status of the [V]eteran's hearing at the end of his military service and the low probability of hazardous noise exposure associated with the [V]eteran's military occupation, the [V]eteran's bilateral hearing loss is less likely as not related to or caused by his military noise exposure." Concerning this, the VA examiner noted that the Veteran's records did not have audiologic evidence from the end of his military service and his Form DD-214 listed the Veteran's military occupation as medical specialist, which had a low probability of hazardous noise exposure. However, in his June 2014 substantive appeal and during this June 2015 Board hearing, the Veteran has reported that during his tour of duty, he served in the Army as a medic in a field artillery unit. He stated he was exposed to loud noise from artillery firings while performing duties as a medic without wearing hearing protection. He claims that as a result of his military noise exposure, he now has difficulty hearing and uses hearing aids without which he has a lot of ringing in his ears. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994)). However, the VA examiner neglected to consider the Veteran's statements concerning his exposure to loud noise from artillery firings. Instead, the examiner assumed that the Veteran had low probability of hazardous noise exposure in service because his military occupational specialty was medical specialist. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (The weight of a medical opinion is diminished where that opinion is based on an inaccurate factual premise or based on an examination of limited scope.) As to the Veteran's low back condition, in a May 2011 statement, the Veteran indicated that he suffered a back injury in June 1980 while in Germany while moving medical equipment; at the time of the injury his back did not bother him too badly, so he took Tylenol and went back to work. However, after discharge from military service, he kept taking over the counter medicine. In his May 2012 notice of disagreement, the Veteran again reported an injury to the back during active duty while lifting and loading boxes and cases of heavy medical supplies at the aid station. He stated there was no line of duty report completed but he received medication from the aid station on a regular basis. In his June 2014 substantive appeal, the Veteran claims that his lower back problem is due to heavy loading and unloading of medical supplies with limited staff during service. A VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In support of this opinion, the examiner provided the following rationale: After review of the Veteran's C-file/STR, there is no medical evidence that the Veteran's recently diagnosed lumbar djd is a result of military service. Lumbar x-rays in 2013 were normal per Radiologist. The Veteran's STR [(service treatment records)] during active duty service reveals no diagnoses of lumbar arthritis or DJD. According to medical literature, degenerative joint disease is common in the lumbar spine, or lower back, because this portion of the spine supports about half of the body's total weight. A lifetime of pressure on the lower back can cause the articular cartilage within vertebral joints, or facet joints, to wear down, a condition that can lead to bone spurs, joint stiffness, inflammation and pain. The natural degeneration that accompanies the aging process is the primary cause of degenerative joint disease, though a variety of secondary causes can accelerate cartilage breakdown, including, • A weakened immune system • Prolonged misuse of joints, overexertion or poor posture • Disease • Obesity • Malnutrition •Congenital joint disorders The examiner also opined that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition because there was no medical evidence to suggest the Veteran's service connected left ankle, left thigh or leg disability caused his lumbar degenerative joint disease (DJD). The Board finds that the November 2015 VA medical opinion is not adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). This opinion did not address whether the Veteran's lumbar DJD was aggravated by his service-connected disabilities. To that effect, VA regulations provide under section 38 C.F.R. § 3.310(a) that service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2015). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. See Littke v. Derwinski, 1 Vet. App. 90, 93 (1990); Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Therefore, a remand is required to obtain a supplemental medical opinion in this matter. Additionally, in a May 2015 VA Form 21-0958, the Veteran indicated that he has been in receipt of disability benefits from the Social Security Administration (SSA). However, although the AOJ confirmed this with the SSA in April 2015, there is no indication that the AOJ has ever requested the Veteran's complete Social Security records from the SSA. As the Veteran's SSA records are potentially relevant to his claims on appeal, a request for his Social Security records, including all medical records that were used as the basis for that decision, should be made before a decision on the merits of the Veteran's claims can be reached. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2) (2015); Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Finally, the Board finds that the claim for a TDIU is inextricably intertwined with the other issues on appeal. See 38 C.F.R. § 19.31 (2015); Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that 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 such, these issues must be adjudicated by the RO prior to the adjudication of entitlement to TDIU benefits. See Harris, 1 Vet. App. at 183. Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and request the Veteran's Social Security disability benefits records, including all medical records and decisional documents. All attempts to obtain the records should be documented in the file. If no records are found and additional requests for SSA records would be futile, notify the Veteran and his representative in accordance with 38 C.F.R. § 3.159(e). 2. Obtain all VA treatment records for the Veteran dated from March 2015 to the present. All records and/or responses received should be associated with the claims file. All attempts to obtain these records must be documented in the claims file. 3. Thereafter, obtain a VA medical opinion from an audiologist to determine whether the Veteran's current hearing loss is related to service noise exposure. After review of the record, the audiologist should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's currently diagnosed hearing loss began in service, was caused by service, or is otherwise related to service. The absence of hearing loss in service cannot be used as the sole basis for a negative opinion. The above opinion should include a discussion of the medical evidence of record. When providing an opinion, the examiner should also consider the Veteran's lay statements as credible regarding his exposure to acoustic trauma in service while serving as a medic in a field artillery unit. A complete rationale must be provided for any opinion offered. 4. Also obtain a supplemental medical opinion from the VA examiner who conducted the November 2015 VA Thoracolumbar Spine examination, if available, to determine the etiology of the Veteran's low back disability. If the November 2015 VA examiner is not available, schedule the Veteran for a VA examination by an individual with the appropriate expertise. The entire claims file must be made available to and reviewed by the VA examiner. Pertinent documents should be reviewed, including service treatment records and the Veteran's statements. Any and all indicated evaluations, studies, and tests should be accomplished. The examiner should provide an opinion regarding as to whether the Veteran's low back disability is at least as likely as not (i.e. a 50 percent probability or more) either proximately caused by or aggravated by his service-connected left thigh, leg, or ankle disability. Aggravation is defined as permanent worsening beyond the natural progression of the disease. A complete rationale must be provided for any opinions expressed. 5. After completing the above development, and any other development deemed necessary, readjudicate all pending claims on appeal, including the claim of entitlement to a TDIU, taking into consideration any newly acquired evidence. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. 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 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). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).