Citation Nr: 0002032 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 97-26 274 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a claimed respiratory condition. 2. Entitlement to service connection for a claimed psychiatric disorder. 3. Entitlement to an increased rating for the service- connected residuals of an avulsion fracture of the left medial malleolus, currently rated 10 percent disabling. 4. Entitlement to an increased (compensable) rating for the service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The veteran served on active duty from September 1972 to June 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 1996 and subsequent rating decisions by the RO. The RO, in a decision in August 1999, in part, denied entitlement to service connection for hip, back and left shoulder conditions, claimed as secondary to the service- connected left ankle disability. As a notice of disagreement is not of record for these issues, they are not in appellate status. 38 U.S.C.A. § 7105 (West 1991). REMAND I. Service Connection for a Respiratory Condition and a Psychiatric Disorder The veteran asserts that he suffers from current respiratory and psychiatric disability which is due to his period of military service. He asserted at a recent hearing before the undersigned Member of the Board that his bronchitis and asthma were the result of a smoking habit which began in service. He also testified that he received treatment for these conditions shortly after separation from service. The veteran's lay assertions alone cannot constitute evidence sufficient to well ground the claim of service connection, but they do trigger VA's duty to notify the veteran of the type of evidence necessary to complete his application. 38 U.S.C.A. § 5103(a) (West 1991); Robinette v. Brown, 8 Vet. App. 69 (1995). The veteran should be instructed to provide all medical evidence which tends to support his assertions that his current respiratory disability and psychiatric disabilities are due to disease or injury which was incurred in or aggravated by service. Moreover, the RO should obtain any additional ongoing treatment records pertinent to these claims. II. Increased Ratings for Left Ankle Disability and Bilateral Hearing Loss Regarding the veteran's claims for increased ratings for the service connected left ankle disability and bilateral hearing loss, the Board notes that the provisions of 38 U.S.C.A. § 5107(a) have been met, in that the veteran's claims for increased ratings are well grounded based on the veteran's evidentiary assertion that his service-connected disabilities have increased in severity. See Drosky v. Brown, 10 Vet. App. 251, 254 (1997) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992)). The VA has a duty to assist the veteran in development of facts pertinent to a well-grounded claim. 38 U.S.C.A. § 5107(a). The examinations currently of record fail to address whether the veteran's service-connected left ankle disability warrants compensation for functional loss due to pain or weakness, fatigability, incoordination or pain on movement of a joint. As such, the RO must address the applicability of 38 C.F.R. § 4.40 (1999) regarding functional loss due to pain and 38 C.F.R. § 4.45 (1999) regarding weakness, fatigability, incoordination or pain on movement of a joint. DeLuca v. Brown, 8 Vet. App. 202 (1995). Thus, another VA examination is necessary to fully evaluate the severity of the service- connected disability. In addition, the Board finds that the veteran should be scheduled for another VA examination to fully evaluate the current extent of the service-connected hearing loss. As indicated hereinabove, any treatment records should be obtained for review in connection with appellate handling of this case. Under the circumstances in this case, further development and assistance are required. Thus, this case is REMANDED to the RO for the following actions: 1. The RO should take appropriate steps to contact the veteran in order to obtain information regarding all medical treatment he has received for the conditions at issue since July 1999. The veteran also should be instructed to provide all medical evidence which tends to support his assertions that he has a current respiratory condition or psychiatric disability due to disease or injury which was incurred in or aggravated by service. This should include attempting to obtain all treatment records from shortly after his separation from service. Based on his response, the RO should undertake to obtain copies of all records from any identified treatment source. Any VA treatment records should be procured in this regard and associated with the claims folder. 2. The RO should schedule the veteran for VA examinations to determine the current severity of his service-connected left ankle disability. All indicated testing in this regard should be completed. The claims folder should be made available to the examiner for review before the examination. The examiner should report detailed findings and describe fully the extent to which the service-connected left ankle disability causes functional limitation, to include objective evidence of limitation of motion due to pain; and to make specific findings as to whether there is any evidence of ankylosis, swelling, deformity or atrophy. 3. The veteran should be afforded a VA audiology examination to evaluate the severity of the service-connected bilateral hearing loss. The claims folder should be made available to the examiner for review before the examination. Complete hearing testing should be done in this regard. 4. Based on the development requested hereinabove, the RO should review the veteran's claims. All indicated action should be taken in this regard. If the benefit sought on appeal remains denied in this regard, then the veteran and his representative should be provided with a supplement statement of the case and given an opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. No action on the veteran's part is required until further notice by the RO. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. STEPHEN L. WILKINS Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).