Citation Nr: 1303243 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-01 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicide agents. 2. Entitlement to service connection for a right eye disorder. 3. Entitlement to service connection for right ear hearing loss. 4. Entitlement to service connection for left ear hearing loss. 5. Entitlement to service connection for a claimed disability manifested as a chronic cough, to include as due to exposure to herbicide agents. 6. Entitlement to service connection for a claimed disability manifested as steatosis (fatty liver) and elevated liver function test results, to include as due to exposure to herbicide agents. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from December 1970 to March 1975. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in April 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Virtual VA paperless claims processing system contains records of VA treatment for the period from February 2010 to November 2012. The Veteran provided testimony at a May 2012 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Virtual VA paperless claims processing system contains VA treatment records for the period from February 2010 to November 2012. These VA treatment records, some of which are material to the claims on appeal, were obtained by VA in December 2012, and thus, were received subsequent to the most recent adjudication of the claims on appeal by the Agency of Original Jurisdiction (AOJ). The records must be reviewed by the AOJ in the first instance, and a Supplemental Statement of the Case (SSOC) issued. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are considered to be constructively contained in the claims folder and must be obtained before a final decision is rendered); 38 C.F.R. § 19.31 (Supplemental Statement of the Case). Additionally, the VA treatment records indicate there was an appointment for audiological treatment scheduled in December 2012. Additional relevant VA treatment records from November 2012 to the present should also be obtained. Bell, 2 Vet. App. at 613. Moreover, a 2009 audiological treatment record is referenced in another September 2012 VA audiological treatment record associated with the Virtual VA claims file. It is not clear if the 2009 treatment record referenced is one of VA or private treatment. The RO/AMC should seek to obtain the 2009 record of audiological treatment. See 38 U.S.C.A. § 5103A(a)-(c). In addition, a July 2012 VA treatment note sets forth an active problems list that includes "Toxic Effect of Dioxin (Agent Orange)" and references October 2007 VA medical records. In May 2009, the Veteran submitted two pages of what appears to be a subset of his October 2007 Agent Orange Registry examination report. The pages associated with the claims file indicate that the examination report has addenda, which are not included in the two pages submitted by the Veteran, and the submitted portion of the report ends in the middle of the physical examination findings. For example, it does not include results of neurological testing or physical or laboratory findings pertaining to diabetes. Therefore, the full report of the Veteran's October 2007 VA Agent Orange Registry examination must be sought and associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board also notes that the service treatment records contain unusual audiological examination results in that right ear pure tone thresholds that were much worse at the Veteran's August 1970 pre-entrance service department examination than at his December 1974 service discharge examination, while his left ear pure tone thresholds appear to have been somewhat worse at the December 1974 service discharge examination than at the August 1970 examination. The Board does not have the medical expertise to determine whether the Veteran has a current hearing loss that began or worsened during, or is related to any incident of, his period of active service. Therefore, a VA examination and opinion as to this matter is therefore required. See 38 U.S.C.A. § 5103A(d). The Board also does not have the medical expertise to determine whether the Veteran's steatosis of the liver and elevated liver function tests represent a current disease of the liver or are more appropriately considered abnormal clinical findings without underlying disease. Because the presence of current disability is an essential element for a claim for service connection, the Board finds that a medical opinion is necessary on this matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (the Board is not competent to supplement the record with its own unsubstantiated medical conclusions; VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions). Lastly, at his May 2012 Board hearing, the Veteran described having fallen out of a helicopter in Vietnam and landing in a rice field during which time he hurt his neck and possibly sustained neurological injury. He indicated that he was treated for the injury onboard his ship and that he had attempted to obtain the ships' records of the injury or incident, but was unable to do so. He contends that his current right eye disorder may be a result of this fall. Moreover, such a fall in Vietnam, if indicated by the evidence, may establish exposure to Agent Orange. Therefore, the RO/AMC should seek to obtain the relevant ships' records. See 38 U.S.C.A. § 5103A(a)-(c). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify all records of VA and non-VA health care providers who have treated him for hearing loss, a chronic cough, diabetes mellitus, a right eye disorder, or a liver disorder that may not have been previously obtained and associated with his claims file. The records sought should include a 2009 record of VA or private audiological treatment, as indicated by history in a September 2012 record of VA treatment associated with the Virtual VA claims file. The records sought should include a full copy of the Veteran's October 2007 Agent Orange Registry examination, any addenda to the examination report, and all potentially relevant additional records of VA treatment from October 2007 to February 2010 not previously associated with the VA paper claims file or the VA Virtual claims file. After obtaining any appropriate authorizations for release of medical information, the RO/AMC must seek to obtain any potentially relevant and available records that have not been previously received from each health care provider the Veteran identifies. The records sought must also include all potentially relevant records of VA treatment and examination from November 2012 to the present. The Veteran must also be advised that, with respect to private medical evidence, he may alternatively obtain the records on his own and submit them to the RO/AMC. 2. Contact all necessary sources to request relevant ships' records, such as ships' logs, as they would pertain to the Veteran having received treatment after injuring neck during a fall from a helicopter in Vietnam. See 38 U.S.C.A. § 5103A(a)-(c). (Service personnel records indicate that he served aboard the U.S.S. Okinawa from February 1973 to March 1974.) 3. After completing the development in the paragraphs above, the Veteran should be afforded a VA examination to determine the nature and etiology of any steatosis of the liver and elevated liver function tests. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should indicate whether the Veteran's steatosis of the liver (see private report of March 2006 abdominal ultrasound) and elevated liver function tests (also referenced in records of private treatment) represent a disease of the liver or are instead considered clinical findings not indicative of underlying disease. If the examiner finds that there is a current disorder, he or she should indicate whether the Veteran has a current left small finger disorder and state whether it is at least as likely as not that the disorder is causally or etiologically related to the Veteran's military service. (The term "at least 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 as medically sound to find in favor of a certain conclusion as it is to find against it.) The examiner should provide a fully reasoned explanation for his or her opinion, based on his or her clinical experience, medical expertise, and established medical principles. 4. Once all available relevant medical records have been received, make arrangements with the appropriate VA medical facility for the Veteran to be afforded a VA audiological examination. The RO/AMC must send the claims file to the examiner for review, and the clinician must indicate that the claims file was reviewed, to include results of audiological testing at the Veteran's August 1970 service department examination and at his December 1974 service discharge examination. The examiner should take a complete history from the Veteran as to the nature and onset of any bilateral hearing loss. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should provide and opinion as to whether the Veteran has current left or right ear hearing loss that began during active service, was chronically worsened during service, or is otherwise related to any incident of service. The medical opinion provided should discuss the significance of the audiological findings in the August 1970 and December 1974 service department examination reports. The examiner should provide a fully reasoned explanation for his or her opinion, based on his or her clinical experience, medical expertise, and established medical principles. 5. Readjudicate the issues on appeal. Readjudication should include consideration of VA records of medical treatment from February 2010 to November 2012, received into the claims file in December 2012. If any benefit sought remains denied, provide the Veteran and his representative a Supplemental Statement of the Case and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. 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. 2012). _________________________________________________ JESSICA J. WILLS 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 your appeal. 38 C.F.R. § 20.1100(b) (2012).