Citation Nr: 1802232 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-05 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for a right hand index finger condition. 3. Entitlement to service connection for a right hand ring finger condition. 4. Entitlement to service connection for a skin condition. 5. Entitlement to a rating in excess of 20 percent for right ankle fracture. REPRESENTATION The Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1997. He is the recipient of numerous service awards, including and not limited to, the Bronze Star Medal, Meritorious Service Medal (two awards), Army Commendation Medal (two awards), Army Achievement Medal (two awards), Army Good Conduct Medal (eight awards), National Defense Service Medal (two awards), Southwest Asia Service Medal with one Bronze Service Star, as well as the Overseas Service Ribbon (three awards). These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions from of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In an August 2009 rating decision, the RO increased the Veteran's service-connected right ankle fracture to a 10 percent disability rating, effective April 14, 2009, but denied service connection for a rash (skin condition), a right hand index finger condition, and a fracture of a right hand ring finger. Subsequently, in an August 2012 rating decision, the RO increased the service-connected right ankle fracture to a 20 percent disability rating, effective March 10, 2011. Thereafter, in a September 2015 rating decision, the RO only granted service connection for a right ear hearing loss, whereas service connection for a left ear hearing loss was denied. Since the grant of service connection for a right ear hearing loss is a grant of full benefits, this particular issue is no longer before the Board, whereas the issue of service connection for a left ear hearing loss remains pending on appeal. In April 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered on these issues on appeal. Left Ear Hearing Loss At his videoconference hearing, the Veteran testified that he spent most of his military career around cannons. See April 2017 Videoconference Hearing Transcript. Although he is service-connected for a right ear hearing loss, the Veteran explained that he wears a hearing aid in the right ear, with which he finds himself compensating for the left ear with the hearing aid, due to his difficulty with hearing on the left ear. Therefore, given the likelihood that his hearing in his left ear has deteriorated since his last audiological examination in August 2011, a remand is required for a contemporaneous VA examination to determine the presence of a left ear hearing loss, for VA purposes, and if any, the etiology of his left ear hearing loss. Right Hand Index Finger, Right Hand Ring Finger & Skin Condition The Veteran asserts that his right hand index finger condition, right hand ring finger fracture, and skin condition are all a result of in-service injuries. See id. (testifying that his index finger was damaged in 1975 in Fort Carson, Colorado when a hatch hit it and he went to sick call the following day, where he was informed that it was broken; that his right hand fracture occurred in Germany during a few softball games, in which he was hospitalized and on convalescent leave for five days, during which they "stringed his right hand back together", cleaned it and administered various injections; and that he developed "jungle rash" when he did a lot of walking in the Panama jungle, where a lot of "warm watches" were in the swamp, and from which he was seen by a dermatologist at a VA facility and was treated with cream). Given the Veteran's credible, competent lay evidence of his in-service injuries, as well as evidence of current diagnoses, a remanded is required for a VA examination and nexus opinion on his right hand index finger, right hand ring finger and skin disabilities. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Right Ankle Fracture The Veteran also asserts entitlement to a rating disability that is in excess of 20 percent for his service-connected right ankle fracture. At his hearing, he testified that VA provided him with an ankle bracelet approximately three years ago, which suggests that his service-connected right ankle fracture might have increased in severity. See April 2017 Videoconference Hearing Transcript. The last time the Veteran was afforded a VA examination on his right ankle was in August 2011. In the August 2011 VA examination report, the VA examiner noted that the Veteran was not using any braces or assistive devices. Therefore, given that six years has elapsed since his last VA examination on his right ankle, and that his service-connected right ankle fracture might have deteriorated, a remand is required for a contemporaneous VA examination to assess the current level of severity of his service-connected right ankle fracture. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) (holding that the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); VAOPGCPREC 11-95 (1995). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding private and VA treatment records and associate them with the claims file. 2. After obtaining all outstanding medical records, schedule the Veteran for a VA examination to determine the presence of any left ear hearing loss, for VA purposes, and if any, its etiology. A copy of this remand must be provided to the audiologist/VA examiner. Then, the VA examiner must review the claims file and must note that review in the report. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The VA examiner must undertake the following: a. Determine the presence of any left ear hearing loss, for VA purposes. Hearing loss, for VA purposes, is when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). b. If the Veteran has a left ear hearing loss disability, pursuant to 38 C.F.R. § 3.385, opine as to whether it is at least as likely as not (50 percent probability or more) that his left ear hearing loss is related to his active service. c. Construe all disclosures and statements from the Veteran as competent lay statements, unless there is good reason to believe that the information being provided by the Veteran cannot be reliable. If it is determined that there is another likely etiology for the Veteran's hearing loss, please indicate and provide a clear, detailed explanation. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 3. Also, schedule the Veteran for a VA examination to determine nature and etiology of his right hand index finger, right hand ring finger and right hand fracture disabilities. A copy of this remand must be provided to the VA examiner. Then, the VA examiner must review the claims file and must note that review in the report. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The VA examiner must undertake the following: Opine as to each disability of a right hand index finger, right hand ring finger and a right hand fracture, whether it is at least as likely as not (50 percent probability or more) the disability is related to his active service. b. Construe all disclosures and statements from the Veteran as competent lay statements, unless there is good reason to believe that the information being provided by the Veteran cannot be reliable. The Veteran's competent statements from the April 2017 videoconference hearing must be considered in forming a nexus opinion on each disability. If it is determined that there is another likely etiology for the Veteran's right hand index finger, right hand ring finger and right hand fracture disabilities., please indicate and provide a clear, detailed explanation. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 4. Also, schedule the Veteran for a VA examination to determine nature and etiology of his skin condition. A copy of this remand must be provided to the VA examiner. Then, the VA examiner must review the claims file and must note that review in the report. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The VA examiner must undertake the following: Opine as to whether it is at least as likely as not (50 percent probability or more) the Veteran's skin condition is related to his active service. b. Construe all disclosures and statements from the Veteran as competent lay statements, unless there is good reason to believe that the information being provided by the Veteran cannot be reliable. The Veteran's competent statements from the April 2017 videoconference hearing must be considered in forming a nexus opinion on his skin condition. If it is determined that there is another likely etiology for the Veteran's skin condition, please indicate and provide a clear, detailed explanation. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 5. Also, schedule the Veteran for a VA examination to determine the current level of severity of his service-connected right ankle fracture. A copy of this remand must be provided to the VA examiner. Then, the VA examiner must review the claims file and must note that review in the report. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The VA examiner must undertake the following: Conduct range of motion testing of the right ankle, specifically noting the motion in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing. See Correia, 28 Vet. App. at 169 - 170. If the VA examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, provide a clear explanation of why that is so. c. Consider all complaints of flare ups in the right ankle. In doing so, the VA examiner must inquire whether the Veteran has had any periods of flare ups. If range of motion testing could be performed during a flare up, indicate whether pain, weakness, fatigability or incoordination significantly limits functional ability with flare ups. If it is not possible to provide a response without resorting to mere speculation, and after doing everything that reasonably should be done to become informed, provide a clear explanation of why a response could not be provided without resorting to mere speculation. If the Veteran has reported any periods of flare ups, but range of motion testing could not be conducted during a flare up, state the severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, according to the Veteran, to what extent, if any, they affect functional impairment. See Sharp v. Shulkin, No. 16-1385 (September 6, 2017). 6. After ensuring compliance, readjudicate the claims. If any issue remains denied, issue a supplemental statement of the case and allow the appropriate time for response from the Veteran or his representative. Then, return the case to the Board for further development. 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). 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. §§ 5109B, 7112 (West 2014). _________________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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) (2017).