Citation Nr: 1804466 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-10 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for residuals, left ankle fracture. 2. Entitlement to an initial compensable evaluation for residuals, Bennett's fracture, left thumb. 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1977 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant and his representative if further action is required on his part. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. The Veteran is seeking increased initial ratings for his service-connected left ankle disability and left thumb disability. The Board notes that the Veteran was last afforded VA examinations in December 2013. While the mere passage of time since the last VA examination does not, in and of itself, warrant additional development, the Board finds that the examination is too remote to be considered a contemporaneous medical examination sufficient to ascertain the current level of disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994); Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Additionally, in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) the United States Court of Appeals for Veterans Claims (Court) held that adequate examination reports must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Board finds that the December 2013 examinations are inadequate because they do not include complete findings as to the Veteran's functional impairment due to pain on active and passive motion, and during weight-bearing and nonweight-bearing. Furthermore, recent Court precedent, citing to a VA clinician's guide, appears to require in cases such as this, that when evaluating impairment from a given disability, the VA examiner is to estimate additional range of motion loss during flare-ups after eliciting appropriate information from the Veteran, and considering all the information of record, or explain why he or she could not do so. See Sharp v. Shulkin 29 Vet. App. 26 (2017). Accordingly, the Veteran should be afforded contemporaneous VA examinations which include such findings and properly assesses the current levels of the Veteran's service-connected disabilities. With regard to the Veteran's claim for service connection for hearing loss, the Board notes that the Veteran's DD 214 shows his MOS was Aviation Boatswain's Mate and that he served on the USS Kitty Hawk. The Veteran has consistently stated that he was exposed to aircraft noise in service while serving on the USS Kitty Hawk. In February 2012, the Veteran was afforded a VA audiology examination. The report of the examination does not indicate that the VA examiner interviewed the Veteran about his history of noise exposure or hearing loss. The examiner opined that it is less likely than not that the Veteran's current bilateral hearing loss was caused by or a result of an event in military service. In support of this opinion, the examiner noted that the Veteran's "audios up to separation from military service show normal hearing ability across frequencies bilaterally." The Board assigns little probative value to the February 2012 medical opinion, as the examiner used a lack of evidence showing hearing loss upon separation to support the opinion that the Veteran's current bilateral hearing loss is not related to his period of active service. Under 38 C.F.R. § 3.385, service connection for a current hearing disability is not precluded where hearing was within normal limits at separation. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Furthermore, the examiner did not address or consider the Veteran's assertions or lay statements in his opinion. For these reasons, the Board finds that the opinion is inadequate and that an addendum opinion is needed which fully considers and addresses the evidence of record. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA Medical treatment records and associate them with the electronic file. All record/responses received should be associated with the electronic file. All efforts to obtain the records should be fully documented, and the facility must provide a negative response if records are not available. 2. Provide the Veteran an opportunity to submit any outstanding private treatment records relating to his claimed disabilities. Provide the Veteran with the appropriate authorization for release form(s). For any outstanding private treatment records identified and authorized by the Veteran, make at least two (2) attempts to obtain such records. All attempts made must be documented in the electronic file, to include the unavailability of any identified records. For any identified records that are not obtained, notify the Veteran of such and provide him with an opportunity to submit those records directly. 3. Schedule the Veteran for a VA ankle examination. The Veteran's electronic file should be made available to the examiner for review. Any indicated diagnostic tests and studies should be performed and the results should be reported in detail. The examiner should clearly list all current disabilities of the left ankle diagnosed on examination. The examiner should determine the range of motion of the Veteran's left ankle, in degrees. Range of motion testing must include both passive and active motion, as well as in weight-bearing and nonweight-bearing conditions. It should be indicated whether and at what point during the Veteran's range of motion the Veteran experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, incoordination or flare-up should be indicated. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. Please note that an examiner's report that (s)he cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. 4. Schedule the Veteran for a VA hand and finger examination. The Veteran's electronic file should be made available to the examiner for review. Any indicated diagnostic tests and studies should be performed and the results should be reported in detail. The examiner should clearly list all current disabilities of the left thumb diagnosed on examination. The examiner should provide opinions as to the following: The examiner should determine the range of motion of the Veteran's left thumb. Range of motion testing must include both passive and active motion, as well as in weight-bearing and nonweight-bearing conditions. It should be indicated whether and at what point during the Veteran's range of motion the Veteran experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, incoordination or flare-up should be indicated. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. Please note that an examiner's report that (s)he cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. 5. After obtaining any outstanding records, return the file to the VA examiner who conducted the Veteran's February 2012 audiology examination. The electronic file and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the electronic file and the Remand have been reviewed. If the February 2012 VA examiner is not available, the electronic file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. The examiner is asked to provide an opinion as to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss began during service or is etiologically related to exposure to excessive noise during active duty service, specifically noise exposure the Veteran experienced in the course of his duties as an aviation boatswain's mate on the USS Kitty Hawk? The examiner is advised that the term "as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed, based on the reviewer's clinical experience, medical expertise, and established medical principles. However, if the examiner cannot respond to an inquiry without resort to mere speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, stating what, if any, additional evidence would permit such an opinion to be made. The appellant and his representative have 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ G. A. WASIK 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) (2017).