Citation Nr: 1310595 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-45 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for a disorder manifested by decreased visual acuity, eye pain, dizziness, and sensitivity to light, claimed as an eye disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to August 1992 and from September 2001 to September 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). Subsequent to the certification of these claims to the Board for appellate review, the Veteran submitted pertinent evidence in support of his claims as well as a contemporaneous waiver of RO review. 38 C.F.R. § 20.1304 (2012). As such, this evidence will be considered herein. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND I. VA Examination The Veteran was not provided a VA examination pursuant to any of the above-captioned claims. Generally, in order to satisfy VA's duty to assist, a VA examination is necessary prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). A. Back Disorder During the pendency of this appeal, the Veteran asserted that he incurred an inservice back injury consequent to lifting boxes containing ammunition. The Veteran's service treatment records demonstrated complaints of and treatment for a back disorder, and the Veteran submitted evidence demonstrating a current diagnosis of lumbago and a lumbosacral sprain or strain. The Board finds that there is an indication that there may be an association between the Veteran's inservice back injury and his current back disorder. However, the evidence of record did not include a competent opinion addressing the etiological relationship between the Veteran's current back disorder and his active duty service. As such, in order to satisfy VA's duty to assist, the Board finds that a remand is required in order to afford the Veteran a VA examination. Id. B. Bilateral Hearing Loss The Veteran asserted that he was exposed to loud noise during his active duty service, including small arms fire, military aircraft, and deck gun fire. The Veteran's service personnel records demonstrated that his military occupational specialties were Air Transportation Specialist, Security Guard, and Physical Security. The Veteran submitted a September 2007 audiogram that appears to demonstrate a current diagnosis of left ear hearing loss, but not right ear hearing loss. 38 C.F.R. § 3.385 (2012). However, in his June 2009 claim, the Veteran indicated that he had been treated for bilateral hearing loss in and after 1988, suggesting that he experiencing persistent or recurrent symptoms of bilateral hearing loss since then. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that a veteran's statement is competent evidence as to events that are capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a veteran's statements are competent evidence of what comes to him/her through his/her senses). The Board finds that there is an indication that there may be an association between the Veteran's current left ear or alleged bilateral hearing loss and his inservice noise exposure. The evidence of record does not include a competent opinion addressing the etiological relationship between the Veteran's military service and his current left ear or alleged bilateral hearing loss. As such, in order to satisfy VA's duty to assist, the Board finds that a remand is required in order to afford the Veteran a VA examination. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon, 20 Vet. App. at 83. C. Eye Disorder An August 2009 private optometry examination demonstrated current diagnoses of myopia, astigmatism, and presbyopia. According to the applicable regulations, these diagnoses are not considered disabilities that are subject to service connection and, thus, to the extent that the Veteran's June 2009 claim concerns these diagnoses, no further development is required. 38 C.F.R. §§ 3.303(c), 4.9 (2012). The Veteran asserted that he experienced an injury to his left eye during his active duty service. Specifically, the Veteran stated that a foreign body associated with welding activity entered his eye, the removal of which required medical intervention. His service treatment records demonstrate that the Veteran complained of a "problem seeing" and photophobia. However, the diagnoses on that occasion were uncorrected astigmatism and myopia. The Veteran's service treatment records also demonstrate that the Veteran complained of and was treated for episodes of dizziness. The assessment was "dizziness/vertigo." In his June 2009 claim, the Veteran asserted that he had been treated for an unstated "eye" disorder since 1983. During the pendency of this appeal, the Veteran asserted that he has experienced decreased visual acuity, eye pain, dizziness, and sensitivity to light since the inservice injury. As such, the Board has re-captioned the Veteran's claim as seen on the title page above. Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (finding that a claimant's identification of the benefit sought does not require any technical precision but may satisfy this requirement by referring to a body part or system, i.e., cardiovascular, that is disabled or by describing symptoms of the disability). The Board finds that there is an indication that these persistent and recurrent symptoms may be associated with the Veteran's inservice complaints. The evidence of record does not include a competent opinion addressing the etiological relationship between the Veteran's military service and a current disorder manifested by decreased visual acuity, eye pain, dizziness, and sensitivity to light, claimed as an eye disorder. As such, in order to satisfy VA's duty to assist, the Board finds that a remand is required in order to afford the Veteran a VA examination. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon, 20 Vet. App. at 83. II. Treatment Records During a February 2012 Board hearing, the Veteran provided testimony concerning his treatment histories for a back disorder and a disorder manifested by decreased visual acuity, eye pain, dizziness, and sensitivity to light, claimed as an eye disorder. The Veteran provided general information as to several post-service medical care providers, and discussed the timing of the treatment he received therefrom. The Veteran stated that one of these previous medical care providers was no longer in operation. The Veteran also specifically identified "Dr. Johns," from whom the RO has already twice requested the Veteran's treatment records without receiving a response. The Veteran is reminded that he is ultimately responsible for obtaining and submitting evidence in support of his claims. Although, the Veteran did not specifically assert that there were relevant treatment records or other relevant evidence available that had not been associated with the claims file, he submitted a September 2007 audiogram demonstrating that he was employed by the U.S. Department of Justice, Federal Bureau of Prisons. The Board did not locate any evidence of record demonstrating that the RO had undertaken efforts obtain the Veteran's treatment records from the U.S. Department of Justice, Federal Bureau of Prisons, while he was so employed. VA has the duty to request information and pertinent records from other federal agencies when on notice that such information exists. See Tetro v. Gober, 14 Vet. App. 110 (2000); see also Walch v. Shinseki, 563 F.3d 1374, 1377 (Fed. Cir. 2009) (noting that "a significant part of the VA's duty to assist is its obligation to make reasonable efforts to obtain relevant records."). The possibility that such records could contain evidence relevant to the Veteran's claims cannot be foreclosed absent a review of those records. Hyatt v. Nicholson, 21 Vet. App. 390, 394 (2007). As such, a remand to attempt the Veteran's treatment records from the U.S. Department of Justice, Federal Bureau of Prisons, is warranted. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, including, but not limited to, insurance claims forms and treatment records from Family Care Practice in Memphis, Tennessee; St. Michael's Rehabilitation Center; Health First; and Dr. Johns. Specifically, the RO must request that the Veteran submit or identify any evidence addressing the etiological relationship between his military service and a current back disorder, bilateral hearing loss, and/or a disorder manifested by decreased hearing acuity, eye pain, dizziness, and sensitivity to light, claimed as an eye disorder. The RO must also request the Veteran to provide information as to his dates and locations of employment while working for the U.S. Department of Justice, Federal Bureau of Prisons. Regardless of whether the Veteran provides the requested information, the RO must then attempt to obtain the Veteran's treatment records from the U.S. Department of Justice, Federal Bureau of Prisons. The RO must obtain copies of all records identified by the Veteran that are not already in the claims file. All attempts to secure this evidence and evidence from the U.S. Department of Justice, Federal Bureau of Prisons, must be documented in the claims file by the RO. If, after making reasonable efforts to obtain the identified records, the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The RO must then schedule the Veteran for a VA examination or examinations. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All studies, tests, and evaluations deemed necessary by the examiner must be performed. The examiner or examiners is/are requested to ascertain the presence of a back disorder and/or a disorder manifested by decreased visual acuity, eye pain, dizziness, and sensitivity to light. If present, the examiner or examiners is/are requested to a offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current back disorder and/or any current disorder manifested by decreased visual acuity, eye pain, dizziness, and sensitivity to light, is/are related to the Veteran's military service. The examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. If an examiner cannot render the requested opinion without resorting to speculation, the examiner must provide the reasoning for that determination. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether the opinion could not be rendered due to limitations of knowledge in the medical community at large or those of the particular examiner. 3. The RO must also afford the Veteran a VA audiological examination. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, to include an audiogram, must be accomplished. Specifically, the results of the audiological evaluation must state, in numbers, the findings of puretone decibel loss at 500, 1000, 2000, 3000, and 4000 Hertz, provide the puretone threshold average, and must also state the results of the word recognition test, in percentages, using the Maryland CNC test. Further, following a review of the evidence of record, the Veteran's military occupational specialty, the Veteran's history of inservice and post-service noise exposure, the clinical findings, and with consideration of the Veteran's statements, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral hearing loss is related to his military service. The examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. The examiner is also advised that although hearing loss may not be shown in service or at separation from service, service connection can still be established if the medical evidence shows that it is actually due to incidents during service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of his claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 5. Once the above actions have been completed, the RO must re-adjudicate the Veteran's claims on appeal, to include consideration of all relevant evidence of record. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ U. R. POWELL 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).