Citation Nr: 1308355 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 08-37 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for vision loss. 2. Entitlement to service connection for a neck disability claimed as neck pain. REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In August 2009, the Veteran and his wife testified at a Central Office hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. This case was previously before the Board in October 2009 when the Board, in relevant part, denied the Veteran's claims for service connection for vision loss and a neck disability claimed as neck pain. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2011 memorandum decision, the Court reversed and vacated the Board's October 2009 decision as to the denial of service connection for a vision loss disability and vacated the decision as to the denial of service connection for a neck disability claimed as neck pain, and remanded those matters for adjudication consistent with the memorandum decision. The issue of entitlement to service connection for a neck disability claimed as neck pain is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT A visual disability is shown by competent medical evidence to be related to claimed head trauma sustained during active military service. CONCLUSION OF LAW A visual disability was incurred in or aggravated by claimed head trauma sustained during active military service. 38 U.S.C.A. §§ 1110, 5107(b) (West. 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The Board acknowledges that a Travel Board hearing was requested by the Veteran's attorney with respect to the issues on appeal. However, the Court has determined that the evidence of record is sufficient to grant the Veteran's claim of entitlement to service connection for vision loss and the Board is bound by such finding. In light of the Board's favorable disposition of the claim for service connection for vision loss, the Board finds that it may proceed to a decision on the merits of that issue without any resulting prejudice to the Veteran. Additionally, given the need to remand the Veteran's claim for service connection for a neck disability claimed as neck pain, no further discussion of the VCAA is necessary. Analysis The Veteran and his attorney essentially contend that he has a current vision disability related to a March 1968 in-service injury when an armored personnel carrier hatch fell on his head, which allegedly resulted in blood loss and loss of consciousness for a number of hours. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167(Fed. Cir. 2004). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). The evidence of record shows that in March 1986, an armored personnel carrier hatch fell on the Veterans head, causing him to bit his lower lip. A lacerated lower lip was assessed, and the cut was sutured. There is no indication that the Veteran suffered a loss of consciousness, or that any additional injury was incurred associated with this incident. The Veteran was afforded a VA eye examination in November 2007 to determine the nature and etiology of any current eye disorder. It was noted that the Veteran reported "constricted visual fields" and a head injury in 1968 when a "tank hatch hit him in the head," causing him to be "unconscious for four hours, lying in a pool of blood." The Veteran reported that subsequent brain injuries were diagnosed as secondary to that trauma. Following an ocular examination, the examiner diagnosed primary open-angle glaucoma, visual field loss, cataracts, and hypertension. As to the Veteran's diagnosed visual field loss or loss of vision in his periphery, the examiner stated that the Veteran indicated that this had been present since his reported head injury in 1968. The examiner found that the corresponding visual field loss on examination was not consistent with the Veteran's level of glaucoma at that time. Thus, he opined that the Veteran's loss of vision is at least as likely as not caused by or a result of trauma in 1968. As noted, the Board denied service connection for vision loss in an October 2009 decision. When the case was before the Court, a memorandum decision was issued wherein the Court determined that the Board committed clear error in determining that it had not been shown that a visual disability was incurred in or aggravated by service. Specifically, the Court indicated that the Board misstated the eye examiner's opinion and used it as evidence that the Veteran's vision loss was not related to his in-service accident when, in fact, the examiner stated that it was at least as likely as not that the vision loss was caused by his head injury. The Court held that the only permissible view of the medical evidence relating to the appellant's vision loss is contrary to the Board's decision. The Court noted that there was no contradictory medical evidence of record relating to the Veteran's vision loss. Thus, the Court reversed the Board's October 2009 denial of service connection for vision loss and remanded the claim for the Board. In accordance with the holding of the Court, service connection for vision loss is granted. ORDER Entitlement to service connection for vision loss is granted REMAND In correspondence received in October 2012, the Veteran's attorney, acting on his behalf, requested a Travel Board hearing at the RO in Detroit, Michigan. A request for a Board hearing "will be granted if an appellant, or an appellant's representative acting on his or her behalf, expresses a desire to appear in person." 38 C.F.R. § 20.700 (2012). "The Board shall decide an appeal only after affording the appellant an opportunity for a hearing." 38 U.S.C.A. § 7107(b) (West 2002 & Supp. 2012). As noted above, the Veteran has already testified at a Central Office hearing before the undersigned Veterans Law Judge in August 2009. In an October 2009 decision, the Board denied the Veteran's claim for connection for a neck disability claimed as neck pain. In a September 2011 memorandum decision, the Court vacated the Board's October 2009 decision with respect to the claim for service connection for a neck disability claimed as neck pain and remanded the claim for readjudication consistent with the Court's memorandum decision. In light of the procedural posture of the claim, and because the appellant has obtained a new representative since the previous hearing, the Board finds that good cause for a new hearing is shown, and the request for an additional Board hearing is granted. In the event that the hearing requested is held before a different Veterans Law Judge, the Veteran and his attorney are hereby apprised of the fact that, pursuant to 38 C.F.R. § 20.707 (2012), the undersigned shall participate in the final determination of the claim based on having conducted the August 2009 Central Office hearing (in a panel decision). To ensure compliance with due process requirements, and because Travel Board hearings are scheduled by the RO, the case is REMANDED for the following action: Schedule the Veteran for a Travel Board hearing at the RO in Detroit, Michigan. The appellant and his attorney should be notified in writing of the date, time and location of the hearing and this should be documented in the claims file. After the hearing is conducted, or if the appellant withdraws the hearing request or fails to report for the scheduled hearing, the claims file should be returned to the Board, in accordance with appellate procedures. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs