Citation Nr: 1321547 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 10-01 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitling to service connection for a visual disorder, to include as secondary to service-connected diabetes mellitus type II and herbicide exposure. 2. Entitlement to service connection for Crohn's disease, to include as secondary to service-connected diabetes mellitus type II and herbicide exposure. 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, and depressive disorder. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied service connection for a visual disorder and Crohn's disease, each to include as secondary to service-connected diabetes mellitus type II, and service connection for PTSD, bilateral hearing loss, and tinnitus. The Veteran filed a February 2007 claim of entitlement to service connection for PTSD. However, during the appellate period, he has also been diagnosed with anxiety and depressive disorders. The scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Thus, on the title page herein, the Board has captioned the Veteran's claim to reflect his other acquired psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 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 A remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The most recent VA treatment records, considering both the physical claims file and Virtual VA, are dated in February 2011. There is no indication that the Veteran has ceased VA treatment. Also, the Veteran identified his local Vet Center as a source of relevant records in the present appeal; however, the Vet Center only submitted a November 2007 statement citing a January 2007 initial assessment for PTSD, without subsequent treatment. The January 2007 assessment is relevant evidence and should be requested. Because VA is on notice that there are additional records that may be applicable to the Veteran's claims and because these records may be of use in deciding the claims, these records are relevant and should be obtained. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); Dunn v. West, 11 Vet. App. 462, 466-67 (1998). As to the claims of entitlement to service connection for a visual disorder and Crohn's disease, each to include as secondary to service-connected diabetes mellitus type II and herbicide exposure, the Board finds that additional VA opinions are required. Review of the Veteran's service treatment records reveals that such are silent for any visual complaints; however, they indicate that in January 1968, he sought treatment for gastrointestinal pain, and in May 1969, he sought treatment for stomach pain. Service connection is permissible on a secondary basis if it is shown that a claimed disorder is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2012); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Further, the Veteran's service personnel records indicate that he served in the Republic of Vietnam from March 9, 1968, to March 5, 1969, and he is thus presumed to have been exposed to herbicides. While his visual disorder and Crohn's disease are not conditions which are presumptively related to herbicide exposure, a Veteran who contracts a disease not presumed under the regulation to be caused by herbicide exposure may still seek to establish service connection by offering medical evidence that his disease was actually caused by military service, including herbicide exposure. See 38 C.F.R. § 3.309 (2012); Combee v. Brown, 34 F.3d 1039, 1042 (1994). In a December 2006 statement, the Veteran's private physician reported that the Veteran had visual complications directly due to his diabetes mellitus type II, and reported that the Veteran had recently changed his eyeglass prescription. In June 2007, the Veteran underwent VA examination, at which time he reported no visual problems, but reported that he wore glasses. The examiner determined that the Veteran presented without evidence of retinopathy. VA treatment records dated in November 2010 indicate that the Veteran presented without retinopathy, and had dry eyes, hyperopia, and presbyopia, with a new eyeglass prescription. Thus it appears that the Veteran's visual disorders have been diagnosed to include only dry eyes and refractive error, hyperopia and presbyopia. Refractive error of the eye is not eligible for service connection, as it is not considered a disease or injury for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2012). However, such a defect may be service-connected if it is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. See VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996); Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004). The June 2007 VA examiner did not address such, considering the Veteran's in-service herbicide exposure. Further, no opinion has been rendered as to whether the Veteran's dry eyes represent a disability, and if so, whether such is related to service, including exposure to herbicide, or if such is secondary to his service-connected diabetes mellitus type II. Also, there is conflicting evidence as to whether any refractive error is secondary to service-connected diabetes mellitus type II. Thus, the June 2007 VA opinion as to the Veteran's visual disorder is not adequate, and on remand, an additional VA opinion must be obtained. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). On VA examination in June 2007, the examiner diagnosed the Veteran with Crohn's disease and provided a negative nexus opinion as to whether such was secondary to his diabetes mellitus type II. The examiner reasoned that the Veteran's Crohn's disease predated his diabetes mellitus type II by at least six years. The Veteran did not report any in-service stomach complaints and the examiner was not asked to render an etiological opinion as to whether the Veteran's Crohn's disease was related to any aspect of service, including the two instances during which he was treated for stomach complaints, or his herbicide exposure. Further, while the examiner opined that the Veteran's Crohn's disease predated his diabetes mellitus type II and was thus not secondary to such, she did not render an opinion to whether the Veteran's Crohn's disease is aggravated by his diabetes mellitus type II. Thus the June 2007 VA opinion as to the Veteran's Crohn's disease is not adequate, and on remand, an additional VA opinion must be obtained. Barr, 21 Vet. App. 303, at 311. In a statement received in January 2008, the Veteran asserted entitlement to service connection for PTSD on the basis that he was a cannoneer or assistant gunner during his service in the Republic of Vietnam. He reported that he experienced incoming mortars and rockets every day when he was at Phu Bai from June 1968 to March 1969. A November 2007 statement from the Vet Center indicates that the Veteran was seen for an initial evaluation for PTSD in January 2007. VA treatment records dated in June 2009 indicate that the Veteran was diagnosed with PTSD, anxiety disorder, depressive disorder, and alcohol dependence. On VA examination in April 2011, the examiner determined that the Veteran did not meet the criteria for a diagnosis of PTSD, and diagnosed him with alcohol dependence and depressive disorder, and did not provide an etiological opinion as to the diagnosed acquired psychiatric disorders of record, anxiety disorder and depressive disorder, or his alcohol dependence. Service connection for alcohol abuse is precluded in two situations: (1) for primary alcohol abuse disabilities; and (2) for secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse. Allen, 237 F.3d at1376. Service connection is not precluded if alcohol abuse is secondary to a service-connected disability. Id. Thus, the April 2011 VA opinion as to the Veteran's acquired psychiatric disorder is inadequate and, on remand, an additional VA opinion must be obtained. Barr, 21 Vet. App. 303, at 311. In his April 2007 claim, the Veteran asserted entitlement to service connection for bilateral hearing loss and tinnitus on the basis that he was a cannoneer during service in the Republic of Vietnam and was exposed to loud noises without any hearing protection. His service separation form, his DD-214, indicates that he had training as a rocket crewman. Based on the Veteran's competent and credible lay statements as to his noise exposure during service, and his DD-214 indicating training as a rocket crewman, the Board finds that he was exposed to acoustic trauma during service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). Further, the Court has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). On VA examination in July 2007, the Veteran was diagnosed with bilateral hearing loss which met the standards to be considered a disability for VA purposes. 38 C.F.R. § 3.385. The Veteran reported the onset of his bilateral hearing loss as 15 years ago, and reported that his tinnitus has existed since service, growing progressively worse. The examiner noted that the Veteran presented for entry into service, in September 1967, with normal hearing, bilaterally; and presented for exit from service, in August 1969, with normal hearing, bilaterally, and an improvement in thresholds when compared with his September 1967 test results. The examiner also noted his post-service private audiometric testing. The examiner reported that based on the Veteran's report of onset of bilateral hearing loss 15 years ago, his normal hearing at separation from service, and an Institute of Medicine study that noted no evidence of delayed onset of noise-induced hearing loss, his bilateral hearing loss was not at least as likely as not related to his service. The examiner further reported that the Veteran's tinnitus is most likely secondary to his bilateral hearing loss. Review of the Veteran's service treatment records indicate that he presented for entry into service, in September 1967, with, in pertinent part, right-ear hearing acuity of 30 decibels at 500 Hertz and 25 decibels at 4000 Hertz and left-ear hearing acuity of 35 decibels at 500 Hertz and 30 decibels at 4000 Hertz. Prior to November 1967, service department audiometric results were reported in standards set forth by the American Standards Association (ASA), however, since November 1, 1967; those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The audiological findings recorded at the Veteran's September 1967 entrance examination have been converted. At the time he presented for exit from service in August 1969, the Veteran's bilateral hearing acuity appeared to have improved in all tested thresholds. The examiner, as noted above, considered the Veteran's bilateral hearing acuity as within normal limits in September 1967, despite the holding in Hensley. It does not appear that the examiner considered converted audiological findings. A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). As the Veteran's bilateral hearing loss, considering Hensley, was noted at the time of his September 1967 entrance examination, he is not presumed sound and the remaining inquiry is whether any pre-existing bilateral hearing loss was aggravated by service. The July 2007 VA examiner did not provide an opinion as to any aggravation of bilateral hearing loss. Also, the examiner did not provide sufficient rationale for the opinion that the Veteran's tinnitus was likely secondary to his bilateral hearing loss, and it does not appear that the examiner considered the Veteran's lay statements of tinnitus that began during active service and has progressed since that time. Thus, the July 2007 VA opinion as to the Veteran's bilateral hearing loss and tinnitus is inadequate and, on remand, an additional VA opinion must be obtained. Barr, 21 Vet. App. 303, at 311. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file his VA treatment records maintained by the Carl Vinson VA Medical Center (VAMC) in Dublin, Georgia, dated from February 2011 to the present. Any and all responses, including negative responses, must be properly documented in the claims file. If a negative response is received from any VA facility, the Veteran must be duly notified and provided an opportunity to submit such records. 2. Send the Veteran a VA Form 21- 4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, and request that he complete such in order to obtain his private treatment records dated in January 2007 from the Vet Center. Subsequent to the return of the VA Forms 21-4142 from the Veteran, obtain and associate with his claims file such private treatment records. Any and all responses, including negative responses, must be properly documented in the claims file. If a negative response is received from any facility, the Veteran must be duly notified and provided an opportunity to submit such records. 3. Schedule the Veteran for a VA examination with an appropriate examiner as to his visual disorders. The examiner must diagnose all current visual disorders. (a) The examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's refractive errors, hyperopia, presbyopia, and any other refractive error found, if any, were subject to, or aggravated by, a superimposed disease or injury during service, specifically, his presumed exposure to herbicides, which results in additional disability. (b) The examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that any current visual disability, beyond refractive error, and considering dry eyes, if such is a disability, was incurred in service, or is otherwise related to service, including his presumed exposure to herbicides. (c) The examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that any current visual disability, including but not limited to, dry eyes, if such is a disability, hyperopia, and presbyopia, is proximately due to, the result of, his service-connected diabetes mellitus type II. In this regard, the examiner must comment upon the December 2006 statement from the Veteran's private physician as to refractive error. (d) The examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that any current visual disability, including but not limited to, dry eyes, if such is a disability, hyperopia, and presbyopia, has been aggravated (made permanently worse beyond the natural progression of the disease) by his service-connected diabetes mellitus type II. 4. Schedule the Veteran for a VA examination with an appropriate examiner as to his Crohn's disease. (a) The examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's Crohn's disease was incurred in service, or is otherwise related to service, including his gastrointestinal complaints or presumed exposure to herbicides. (b) The examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's Crohn's disease has been aggravated (made permanently worse beyond the natural progression of the disease) by his service-connected diabetes mellitus type II. 5. Schedule the Veteran for a VA examination with an appropriate examiner as to his acquired psychiatric disorder. The examiner must diagnose all current acquired psychiatric disorders. (a) The examiner must specifically determine if the Veteran has PTSD, and, if not, specifically discuss the criteria for a diagnosis found lacking, and specifically consider and comment upon the June 2009 VA and possibly, the January 2007 Vet Center, diagnoses of PTSD, and the April 2011 VA examiner's determination that the Veteran does not meet the criteria for a PTSD diagnosis. (b) If the examiner determines that the Veteran has PTSD, the examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's exposure to incoming mortars and rockets is adequate to support a diagnosis of PTSD and whether his symptoms of PTSD are related to such exposure to incoming mortars and rockets. (c) The examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that any current acquired psychiatric disability, excluding PTSD, and including, but not limited to, anxiety disorder and depressive disorder, was incurred in service, or is otherwise related to service, including his exposure to incoming mortars and rockets. (d) If there is a positive nexus opinion rendered for PTSD, or any other acquired psychiatric disorder, the examiner must also opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's alcohol dependence is proximately due to, the result of, his PTSD or any other acquired psychiatric disorder. (e) If there is a positive nexus opinion rendered for PTSD, or any other acquired psychiatric disorder, the examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's alcohol dependence has been aggravated (made permanently worse beyond the natural progression of the disease) by his PTSD or any other acquired psychiatric disorder. In this regard, the examiner should consider the Veteran's statements regarding psychiatric symptoms during and since service, if any. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service treatment records to provide a negative opinion). 6. Schedule the Veteran for a VA examination with an appropriate examiner as to his bilateral hearing loss and tinnitus. (a) The examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's pre-existing bilateral hearing loss underwent an increase in the underlying pathology during service, i.e., was not aggravated during service. In this regard, the examiner must specifically consider the Veteran's in-service acoustic trauma. (b) If there was an increase in severity of the Veteran's pre-existing bilateral hearing loss during service, the examiner must opine as to whether such is clearly and unmistakably due to the natural progress of the disease. In this regard, the examiner must specifically consider the Veteran's in-service acoustic trauma. "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence."). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003). (c) The examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's tinnitus was incurred in service, or is otherwise related to service, including his acoustic trauma. (d) The examiner must also opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's tinnitus is proximately due to, the result of, his bilateral hearing loss. (e) The examiner must opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's tinnitus has been aggravated (made permanently worse beyond the natural progression of the disease) by his bilateral hearing loss. In this regard, the examiner should consider the Veteran's statements regarding auditory symptoms during and since service, if any. Dalton, 21 Vet. App. 23. The claims file, to include a copy of this remand, should be made available to the examiners for review in conjunction with the examinations, and the examiners should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. The examiners should fully articulate a sound reasoning for all conclusions made. If the requested opinions cannot be provided without resorting to mere speculation, the examiners should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 7. Subsequent to the VA examinations, review the examination reports to ensure complete compliance with the directives of this remand. If any report is deficient in any manner, corrective procedures must be implemented. 8. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims of entitlement to service connection for (1) a visual disorder and (2) Crohn's disease, each to include as secondary to service-connected diabetes mellitus type II and herbicide exposure, (3) an acquired psychiatric disorder, to include PTSD, anxiety disorder, and depressive disorder, (4) bilateral hearing loss, and (5) tinnitus, considering any additional evidence added to the record. If any action remains adverse to the Veteran, provide the Veteran with a Supplemental Statement of the Case (SSOC) and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examinations requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2012) failure to cooperate by not attending any requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. 2012). _________________________________________________ S. L. Kennedy 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).