Citation Nr: 18157791 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 12-21 843 DATE: December 13, 2018 ORDER The appeal seeking to reopen a claim of service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a rating in excess of 10 percent for temporomandibular joint (TMJ) fracture, to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. An April 1996 rating decision denied the Veteran’s original claim of service connection for bilateral hearing loss because there was no evidence that he had a hearing loss disability for VA purposes. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of that rating decision. 2. Evidence received since the April 1996 rating decision (1) includes evidence not of record at that time, including a September 2009 VA examination and an August 2012 private audiogram which shows that the Veteran now has diagnoses of left and right ear hearing loss, respectively, for VA purposes, (2) relates to an unestablished fact necessary to substantiate the underlying claim of service connection, and (3) raises a reasonable possibility of substantiating that claim. CONCLUSION OF LAW New and material evidence has been received; the claim of service connection for bilateral hearing loss may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156; see also Shade v. Shinseki, 24 Vet. App. 110, 121 (2010) (the Court has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold and that the phrase “raises a reasonable possibility of substantiating the claim” is “enabling rather than precluding reopening”). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from September 1983 to September 1993. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). For the reasons outlined above, the appeal seeking to reopen a claim of service connection for bilateral hearing loss is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. After reviewing the record, the Board finds that a new medical opinion is necessary. In September 2009, a VA examiner confirmed that the Veteran did not have a right ear hearing loss disability for VA purposes and that his left ear hearing loss was less likely than not related to service based on his normal hearing at service separation. Since that time, an August 2012 private audiogram shows that the Veteran currently has a right ear hearing loss for VA purposes. Accordingly, there is no question that the Veteran has a current bilateral hearing loss disability. Although bilateral hearing loss was not diagnosed in service, the absence of such diagnosis is not fatal to a claim of service connection for such disability. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). Accordingly, another (adequate) opinion regarding the likely cause of the Veteran’s bilateral hearing loss is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, a May 2006 VA treatment record from Richmond VA Medical Center (VAMC) refers to audiology conducted at Norfolk VAMC and states that this record was not available. An April 2009 VA treatment record refers to an audiological assessment and states that the report was scanned into VISTA imaging. The Board does not have access to those electronic records. Because records of all VA evaluations or treatment the Veteran has received for his hearing loss are likely to contain pertinent information (and outstanding VA records are constructively of record), they must be obtained, including those scanned into VISTA imaging. 2. Entitlement to a rating in excess of 10 percent for TMJ fracture, to include on an extraschedular basis, is remanded. With respect to the Veteran’s increased rating claim for his TMJ fracture, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, a review of the claims file reveals that the prior VA dental examinations do not fully comport with the requirements of Correia and therefore may be inadequate. Thus, at present, none of the medical evidence of record may fully satisfy the requirements of Correia and 38 C.F.R. § 4.59. Accordingly, a new VA examination is necessary. Additionally, when conducting evaluations for musculoskeletal disabilities, VA examiners must inquire whether there are periods of flare-ups and, if the answer is yes, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.” See Sharp v. Shulkin, 29 Vet. App 26, 34 (2017). If an examination is not conducted during a flare-up, the “critical question” in assessing the adequacy of the examination is “whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.” Id. at 16 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). In this case, the examiner did not provide any response with regard to potential additional functional loss during the reported flare-ups of the Veteran’s TMJ fracture. The Board finds that further inquiry should reasonably have been attempted to determine the impact of these flare-ups. On remand, the examiner is required to ascertain adequate information regarding the Veteran’s flare-ups and “estimate the functional loss that would occur during flares” for his TMJ fracture. Id. at 33. Additionally, pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case “presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.” 38 C.F.R. § 3.321(b)(1). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptoms of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” 38 C.F.R. § 3.321(b)(1) (related factors may include factors such as “marked interference with employment” and “frequent periods of hospitalization”). In this case, the Board finds that the schedular rating available under the provisions of 38 C.F.R. § 4.150, Diagnostic Code 9905, may be inadequate because the criteria do not adequately address the Veteran’s reports of jaw joint popping, jaw locking, tenderness of muscles of mastication, and potentially associated headaches. Specifically, consideration of limitation of motion under the rating schedule does not address these symptoms. As the Board cannot assign an extraschedular rating in the first instance, referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the assignment of an extraschedular rating is warranted for the Veteran’s service-connected TMJ dysfunction. As such, a remand is necessary. The matters are REMANDED for the following action: 1. The AOJ should ask the Veteran to identify the providers of all evaluations or treatment he received for the disabilities on appeal and to provide authorizations for VA to obtain the complete records of any such private evaluations or treatment, to include records from Costco Hearing Aid Center. The AOJ should obtain for the record complete clinical records of the evaluations and treatment identified (i.e., any not already associated with the record). If any private records identified are not received pursuant to the AOJ’s request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. 2. The AOJ should secure for the record copies of the complete clinical records (any not already associated with the claims file) of any VA evaluations or treatment the Veteran received for the disabilities on appeal, to specifically include a 2006 audiological assessment from Norfolk VAMC and the audiological assessment in April 2009 that was scanned into VISTA (noted above). 3. Thereafter, schedule the Veteran for a VA audiological examination to determine whether his bilateral hearing loss is related to service. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. Based on review of the record and interview and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Does the Veteran have a right ear hearing loss disability for VA purposes? If not, reconcile that with the results of the August 2012 private audiogram that shows right ear hearing loss. (b) Is it at least as likely as not (a 50% or better probability) that the Veteran’s hearing loss is related to his service/exposure to noise trauma therein? If not, please identify the cause considered more likely. The examiner is reminded that service connection for a current hearing disability is not precluded where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. The examiner is asked to address the following: • the July 1993 service separation report of medical history, which notes mild hearing loss; • any significant threshold shift noted in the several audiograms taken during the Veteran’s service; • the Veteran’s reports of exposure to noise during service; and • the Veteran’s wife’s August 2012 statement that he “kept turning up the sound on the television, [and] could not hear me or the children in the car or in the house” while living in base housing and that his “hearing was bad while in the service and has gotten significantly worse.” A detailed explanation (rationale) is requested for all opinions provided. By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested. 4. Schedule the Veteran for a VA examination to determine the current severity of his service-connected TMJ fracture. The claims file must be made available to the examiner for review in connection with the examination. Any medically indicated tests should be conducted. Based on review of the record and interview and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Please conduct and document range of motion studies that include active AND passive motion and weight-bearing AND non-weight-bearing motion. The examiner should note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors. If the VA examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. All findings should be reported in detail. (b) Please also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner is also asked to request the Veteran to identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on the information. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran’s range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. In providing all of the requested opinions, the examiner should consider the Veteran’s competent lay statements regarding the observable symptoms he has experienced, including those associated with flare-ups. (c) Please also opine as to whether the Veteran’s reported headaches are a symptom of his service-connected TMJ dysfunction or, in the alternative, is at least as likely as not proximately due to or aggravated by his service-connected TMJ dysfunction. A detailed explanation (rationale) is requested for all opinions provided. By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested. [CONTINUED ON NEXT PAGE] 5. Thereafter, the issue of whether an extraschedular rating for the Veteran’s TMJ fracture is warranted must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for initial adjudication. As required by recent case law, the resulting decision MUST include (1) a statement of reasons for the decision and (2) a summary of the evidence considered. Kuppamala v. McDonald, 27 Vet. App. 447, 456 (2015); see 38 U.S.C. § 5104. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Matta, Counsel