Citation Nr: 0811540 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 06-10 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for skin cancer. 3. Entitlement to service connection for lumbar spine disability, claimed as secondary to service-connected left knee disability. 4. Entitlement to service connection for cervical spine disability, claimed as secondary to service-connected left knee disability. 5. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant/Veteran ATTORNEY FOR THE BOARD T. L. Reynolds, Counsel INTRODUCTION The veteran served on active duty in the military from November 1962 to May 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Jackson, Mississippi. The veteran testified at a Travel Board hearing in August 2007. A transcript of that hearing is associated with the claims files. During the hearing, the veteran submitted additional evidence and waived his right to have it initially considered by the RO. 38 C.F.R. §§ 20.800, 20.1304(c). In addition to the issues listed above, the veteran also appealed the denial of service connection for ankle pain. During the hearing, the veteran withdrew his appeal of that issue. Thus, the issue is no longer in appellate status. The United States Court of Appeals for Veterans Claims (Court) issued a decision in Haas v. Nicholson, 20 Vet. App. 257 (2006), that reversed a decision of the Board which denied service connection for disabilities claimed as a result of exposure to herbicides. VA disagrees with the Court's decision in Haas and appealed it to the United States Court of Appeals for the Federal Circuit (Federal Circuit). To avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims based on court precedent that may ultimately be overturned on appeal, on September 21, 2006, the Secretary of Veterans Affairs imposed a stay at the Board on the adjudication of claims affected by Haas. The specific claims affected by the stay include those involving claims based on herbicide exposure in which the only evidence of exposure is the receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam. Therefore, because the veteran's claim of entitlement to service connection for diabetes mellitus is premised solely upon his service in the waters off the shore of Vietnam, the issue is stayed. Once a final decision is reached on appeal in the Haas case, the adjudication of this issue will be resumed. The issues of entitlement to service connection for GERD, skin cancer, for a lumbar spine disability, a cervical spine disability and for bilateral hearing loss are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The veteran contends that he began experiencing GERD in the last ten years of his service and that he has experienced reflux problems ever since then. His service medical records show that he noted a history of indigestion in his March 1982 report of medical history. The veteran is currently treated for GERD. The veteran is competent to testify as to the presence of observable symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). His testimony may be considered an indication that current disability may be associated with his service in light of the service medical record showing indigestion in 1982. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Consequently, the claim of entitlement to service connection for GERD must be remanded for additional development of the medical record pursuant to 38 C.F.R. § 3.159(c)(4). The record does not show that the veteran currently has skin cancer or a disability associated with skin cancer, however, there is evidence that he was treated for skin cancer in the 1980's. The veteran credibly asserts that his skin cancer was associated with sun exposure and the record clearly shows a twenty year history of service in the United States Navy about various ships. Thus, in an effort to afford this veteran every opportunity to substantiate his claim, the Board finds that the claim of service connection for skin cancer must also be remanded for additional development of the medical record pursuant to 38 C.F.R. § 3.159(c)(4). In terms of the veteran's claims of entitlement to service connection for a lumbar spine disability and cervical spine disability, both claimed as secondary to service-connected left knee disability, the veteran contends that service connection is warranted for both disabilities as they are the results of his service-connected left knee disability. The record contains contradictory opinions which leave the matter unresolved. Therefore, a VA examination is in order and these claims too must be remanded for additional development of the medical record pursuant to 38 C.F.R. § 3.159(c)(4). Turning to the veteran claim of bilateral hearing loss based upon in-service noise exposure, his March 1982 report of medical examination revealed bilateral borderline hearing loss. During the veteran's hearing he reported that one of his military occupational specialties while in service was that of a gunner's mate whereby he was exposed to loud noise during the performance of his duties. He also felt that the loud machinery which he was consistently exposed to onboard the ship contributed to his bilateral hearing loss. Audiometric testing conducted in March 2002 revealed a diagnosis of mild sensorineural hearing loss bilaterally in both ears. Under these circumstances, the Board finds that the veteran should be afforded a VA examination, and a medical opinion should be obtained, based on a comprehensive review of the entire claims files, on whether bilateral hearing loss is related to his active duty service. Accordingly, the case is REMANDED for the following action: 1. Obtain all current treatment records and associate them with the claims folder. 2. Schedule the veteran for an examination to determine the nature and etiology of his complaints associated with GERD. The claims file must be made available and reviewed by the examiner and the examiner should be requested to comment on the history of indigestion reported in the service medical records. All appropriate testing should be performed and all diagnoses rendered. For each diagnosed disability, the examiner should state if it is at least as likely as not that the disability began during service or developed as a consequence of service. Each opinion provided must be supported by complete rationale. 3. Schedule the veteran for a dermatologic examination to determine the nature and etiology of all complaints associated with sun exposure. The claims file must be made available and reviewed by the examiner and the examiner should be requested to comment on the history of sun exposure onboard ships during service. All appropriate testing should be performed and all diagnoses rendered. For each diagnosed disability, the examiner should state if it is at least as likely as not that the disability began during service or developed as a consequence of service. Each opinion provided must be supported by complete rationale. 4. Schedule the veteran for an orthopedic examination to determine the nature and etiology of all complaints associated with neck and back pain. The claims folders must be made available to and be reviewed by the examiner. All appropriate testing should be performed and all diagnoses rendered. For each diagnosed disability, the examiner should state if it is at least as likely as not that the disability began during service, developed as a consequence of service, or developed as a result of the veteran's service-connected left knee disability. The examiner should also state if any neck and/or back disability increased in severity as a result of the veteran's left knee disability. Each opinion provided must be supported by complete rationale. The examiner should specifically note review of the opinions from Dr. J. J. McCloskey, M.D. dated in August 2006 and August 2007. The examiner should also note review of a June 2000 private treatment record signed by M. D. Perry, M.D. which references a fall in approximately 1997 which led to the veteran's onset of back and neck pain. And, the examiner should specifically note review of an April 25, 1995 private treatment record which indicated that the veteran was involved in a motor vehicle accident on April 23, 1995, and complained of stiffness in his neck. The examiner should discuss each of these events and their impact on the veteran's current service connection claims. 5. Schedule the veteran for an audiologic examination to determine the etiology of complaints of hearing loss. The claims folder must be made available to and be reviewed by the examiner and the examiner should be requested to comment on the history of noise exposure both during service and after service. All appropriate testing should be performed and all diagnoses rendered. For each diagnosed disability, the examiner should state if it is at least as likely as not that the disability began during service or developed as a consequence of service. Each opinion provided must be supported by complete rationale. 6. When the development requested has been completed, the case should be reviewed on the basis of the additional evidence. If the benefits sought are not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case, and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ Kristi Barlow Acting Veterans Law Judge, Board of Veterans' Appeals