Citation Nr: 1326410 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 10-04 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for an eye disability, claimed as secondary to (service-connected) diabetes mellitus. 4. Entitlement to service connection for erectile dysfunction (and special monthly compensation (SMC) for loss of use of a creative organ), claimed as secondary to diabetes mellitus. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Megan C. Kral, Assoicate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1967 to July 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that both the Veteran's claims file and electronic records in Virtual VA have been reviewed. The issue of service connection for peripheral neuropathy of the upper extremities has been raised by the record (by VA Form 21-526 received May 23, 2006), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND In a claim seeking service connection VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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 claimant 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) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The U.S. Court of Appeals for Veteran's claims held in McLendon that factor 3 of those listed is a "low threshold requirement". The Veteran served in combat in Vietnam. It is not in dispute that he was exposed to the hazardous noise associated with combat noise trauma. He reports that he has constant ringing/buzzing in both ears; difficulty hearing conversations and the television; and difficulty distinguishing words. As noise trauma is a known etiological factor for hearing loss and tinnitus, the low threshold endorsed in McLendon is satisfied, and an examination to assess the claimed hearing loss and tinnitus disabilities is necessary. The Veteran likewise has not been afforded a VA examination in connection with his claims seeking service connection for eye disability and erectile dysfunction (and SMC for loss of use of a creative organ) as secondary to his service-connected diabetes. As eye disabilities resulting in loss of vision and erectile dysfunction are known complication of diabetes, an examination to assess for such disabilities is also necessary. [On June 2007 VA examination the Veteran had denied having erectile dysfunction problems. He states that he misunderstood the question, and would have responded in the affirmative had he heard/understood the question.] Furthermore the record indicates reports of the Veteran's VA treatment for disabilities at issue have not been updated for the record. Some sparse VA treatment records are in the record. Complete VA treatment records are pertinent to the instant appeal, are constructively of record, and must be secured. 38 C.F.R. § 3.159(c)(2). Additionally, the Veteran has advised that he receives Social Security Administration (SSA) benefits (but did not specify whether the award was based on age-or disability). Medical records considered in connection with a SSA determination are constructively of record and must be secured. Regarding the claim for a TDIU rating, the Veteran has asserted that his service-connected posttraumatic stress disorder (PTSD), diabetes mellitus, and peripheral neuropathy, together with the hearing loss, tinnitus, and visual impairment he seeks to have service connected, combine to render him unemployable. The record does not include a VA medical opinion regarding the combined impact of his service-connected disabilities on employability. A VA medical opinion that addresses this question is necessary. Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify the providers of all evaluations and/or treatment he has received for the claimed disabilities, and to provide the authorizations necessary for VA to obtain all outstanding records of any private evaluations or treatment he received for such disabilities. The RO should secure for the record copies of the complete clinical records of all evaluations and treatment from the sources identified. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to the RO's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. The RO must specifically secure for the record copies of the complete (since October 2005) clinical records of any VA treatment the Veteran has received for service connected disabilities. 2. The RO should also ascertain whether the Veteran's SSA benefits are age/retirement or disability-related, and if the latter, secure from SSA a copy of the award and copies of all medical records considered in connection with their determination. 3. The RO should then arrange for an audiological evaluation of the Veteran (with audiometric studies) to determine the presence and likely etiology of any hearing loss and tinnitus. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. Based on a review of the record, and examination and interview of the Veteran (and noting that the Veteran served in combat), the examiner must offer opinions that respond to the following: (a) Does the Veteran have hearing loss disability by VA standards (as defined in 38 C.F.R. § 3.385) and/or tinnitus? (b) If so, what is the most likely etiology for the hearing loss and/or tinnitus? Specifically, is it at least as likely as not (a 50% or better probability) that they are related to his exposure to noise trauma in service? The examiner must explain the rationale for all opinions, with citation to supporting clinical data, as indicated. If it is determined that the claimed disabilities are not related to the Veteran's service, the examiner should identify the nonservice-related factors considered to be more likely possible etiologies for the disabilities. 4. The RO should also arrange for an ophthalmological examination to determine whether he has any eye pathology (causing visual impairment) that was caused or aggravated by his diabetes The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. Any tests or studies indicated must be completed. Based on review of the record and examination of the Veteran, the examiner should provide an opinions that respond to the following: (a) Please identify (by medical diagnosis) all eye pathology and associated impairment of function found. Any eye disability that is solely due to refractive error should be so identified. (b) Identify (as to each eye disability entity diagnosed) the most likely etiology for the Veteran's eye disability. Specifically, is it at least as likely as not (a 50 percent or better probability) that such was caused or aggravated by (increased in severity due to) the Veteran's service-connected diabetes? The examiner must explain the rationale for all opinions, with citation to supporting factual data and/or medical literature as deemed appropriate. 5. The RO should arrange for the Veteran to be examined by the appropriate physician to determine whether or not he has erectile dysfunction (and loss of use of a creative organ as described in 38 C.F.R. § 3.350 (a)(1). The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. Any tests or studies indicated must be completed. Based on review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Does the Veteran have erectile dysfunction and loss of use of a creative organ? (b) If the response to (1) is affirmative, is the erectile dysfunction/loss of use at least as likely as not (a 50% or greater probability) secondary to (caused or aggravated by/complication of) the Veteran's service connected diabetes? The examiner must explain the rationale for all opinions, with citation to supporting factual data and/or medical literature as deemed appropriate. 6. The RO should provide the Veteran a TDIU application form for completion, and send him a VCAA notice letter notifying him and his representative of what is necessary to substantiate a claim for TDIU. The notice must also explain what information or evidence the Veteran must provide, and what information or evidence VA will attempt to obtain on his behalf (and advise the Veteran how an effective date would be assigned). The Veteran and his representative should have the opportunity to respond. If he responds, the RO should arrange for the Veteran to be examined by an appropriate physician to ascertain the combined impact of his service-connected disabilities on his employability. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: What is the combined impact of the Veteran's service-connected disabilities (PTSD, diabetes, peripheral neuropathy, and any additional disabilities determined to be service connected following the additional development ordered) on the Veteran's employability? Specifically, do they render him incapable of participating in any substantially gainful employment consistent with his education and occupational experience (but disregarding his age as that is not a factor for consideration). Please identify the types of employment that would be precluded by the service connected disabilities and those (if any) that remain feasible despite the disabilities. 7. The RO should then review the record and readjudicate the claims. If any remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further 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 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). _________________________________________________ GEORGE R. SENYK 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).