Citation Nr: 1108534 Decision Date: 03/03/11 Archive Date: 03/17/11 DOCKET NO. 94-18 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for residuals of a sprained left ankle. 3. Entitlement to service connection for an eye disorder, other than conjunctivitis with loss of vision. 4. Entitlement to service connection for bilateral hearing loss disability. 5. Entitlement to service connection for tinnitus. 6. Entitlement to service connection for a chronic lung disorder manifested by positive protein derivative (PPD) or tine test. 7. Entitlement to service connection for a gastrointestinal disorder manifested by indigestion or gastritis. 8. Entitlement to service connection for prostatitis. 9. Entitlement to service connection for rheumatoid arthritis. 10. Entitlement to service connection for osteoarthritis, degenerative and post-traumatic. 11. Entitlement to service connection for bronchopneumonia. 12. Entitlement to service connection for peptic ulcer disease. 13. Entitlement to service connection for ischemic heart disease and hypertensive cardiovascular disease with angina. 14. Entitlement to service connection for diabetes mellitus. 15. Entitlement to service connection for acute pyelonephritis. 16. Entitlement to service connection for a liver condition. 17. Entitlement to service connection for Bell's palsy with facial numbness. 18. Entitlement to service connection for dengue hemorrhagic fever. 19. Entitlement to service connection for erectile dysfunction. 20. Entitlement to service connection for posttraumatic stress disorder (PTSD). 21. Evaluation of mitral valve prolapse, currently rated as 10 percent disabling. 22. Evaluation of keratosis pilaris/folliculitis, currently rated as 30 percent disabling. 23. Evaluation of tinea pedis, currently rated as 10 percent disabling. 24. Entitlement to an increased rating for chondromalacia of the knees, currently rated noncompensable. 25. Entitlement to a compensable evaluation for hemorrhoids. 26. Entitlement to a compensable evaluation for lipomas of the abdomen, chest, and back, status post excision. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran had active service from August 1961 to September 1991. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from multiple RO rating decisions. The Veteran provided testimony at a personal hearing held at the San Diego, RO before a Hearing Officer in January 1994. A transcript of the hearing has been associated with the record. In March 2003, the Board denied entitlement to an initial evaluation in excess of 10 percent for conjunctivitis. In January 2004 the parties, appellant and appellee, moved the United States Court of Appeals for Veterans Claims (Court) to vacate and remand the Board's March 2003 decision. In January 2004 the Court entered an Order vacating the March 27, 2003 decision and remanding it to the Board for further action consistent with its Order. In September 2004, the Board remanded the claim to the RO for additional development to include a VA examination of the Veteran. The Board again denied this claim in an August 2006 decision. This appeal involves numerous issues arising from different rating decisions of the RO as far back as February 1992. After multiple Board remands, the Board denied 26 claims in an August 2008 decision. In a February 2010 memorandum decision, the Court vacated the Board's decision on each claim and remanded them to the Board. Based on the Court's February 2010 decision, the appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND With regard to each of the claims other than those for entitlement to service connection for bilateral hearing loss disability, tinnitus, and PTSD, the Board's decision was based in part on the Veteran's failure to appear for VA examinations scheduled in connection with these claims in May 2007. Pursuant to 38 C.F.R. § 3.655(a) (2010), when a Veteran fails to report, without good cause, for a VA examination scheduled in connection with a claim for which entitlement cannot be established without a current VA examination, action will be taken in accordance with 38 C.F.R. § 3.655(b). 38 C.F.R. § 3.655(b) provides that such a claim will either be decided based on the evidence of record or denied as a matter of law, depending on whether or not it is an original compensation claim. Prior to the examinations, the Veteran's representative submitted an April 2007 letter indicating that the Veteran could not attend the scheduled examinations because of severe illness. As implied by the Court, severe illness constitutes good cause, and the appropriate action is therefore to reschedule the examinations. Consequently, the Board will remand the 23 claims for such action. As to the remaining three claims, there have been multiple VA examinations regarding the Veteran's bilateral hearing loss disability, some of which have indicated that there was non-compliance with test procedures indicating an attempt to exaggerate hearing loss, while others have indicated that there was in fact mild to moderate or profound sensorineural hearing loss. Given these differing medical opinions, the Board finds that an opinion should be obtained from an appropriate specialist who, after reviewing these examination reports and all of the relevant evidence, should offer an opinion as to whether the Veteran has a bilateral hearing loss disability and, if so, whether it is related to noise exposure in service. Given that there is also evidence of tinnitus which the Veteran claims began in service, the same specialist should offer an opinion as to whether the Veteran's tinnitus is related to in-service noise exposure. Finally, with regard to the claim for entitlement to service connection for PTSD, as noted by the Court, while service personnel records reflect that the Veteran served aboard the U.S.S. Ranger as a cook and chef, there is a certificate in the record that commemorates the Veteran's active participation in Operation Desert Storm and testimony to the same effect. The Court indicated that the Board should, at a minimum, have sought further information to determine what "active participation" means, including whether the U.S.S. Ranger faced combat during the time the Veteran was aboard. As the determination of whether the Veteran engaged in combat with the enemy is crucial, and possibly dispositive, as to the question of entitlement to service connection for PTSD, a remand to seek the information that Court has indicated should be sought is warranted. Accordingly, the case is REMANDED for the following action: 1. Re-schedule the Veteran for the examinations initially scheduled for May 2007 in connection with the 23 claims other than those for entitlement to service connection for bilateral hearing loss disability, tinnitus, and PTSD. With regard to each examination, all necessary tests should be conducted, and the claims file must be sent to the examiners for review. Each examiner should provide a complete rationale for any opinion provided, and each should be advised that the Veteran is competent to report symptoms, treatment, and injuries, and that these reports must be taken into account, along with all of the other evidence, in formulating the requested opinions. 2. Obtain an opinion from an appropriate audiological specialist as to whether the Veteran has a current hearing loss disability and/or tinnitus and, if so, whether either or both are related to in-service noise exposure. The specialist should review all of prior audiological examinations as well as the other relevant evidence of record prior to offering his or her opinion, and should provide a complete rationale for any opinion expressed. The rationale should take account of the Veteran's prior statements made with regard to his hearing ability and tinnitus, along with the other relevant evidence. The claims file must be sent to the specialist for review. 3. Contact and consult the appropriate sources and authorities to determine the meaning of the certificate commemorating the Veteran's active participation in Operation Desert Storm, and make a specific determination as to whether the Veteran engaged in combat with the enemy. 4. Then, review any additional evidence and readjudicate the claims. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. 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). These claims 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. 2010). _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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 the appeal. 38 C.F.R. § 20.1100(b) (2010).