Citation Nr: 1327751 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 10-23 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a left eye disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his Wife ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty with the United States Navy from September 1952 to April 1962. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which in pertinent part denied service connection for hearing loss, tinnitus, and left eye blindness. The issue with regard to the left eye has been recharacterized to reflect the presence of several conditions affecting vision. In February 2013, the Board remanded the claims to the RO, via the Appeals Management Center (AMC), in Washington, DC, for additional development. The claim has now been returned to the Board for further appellate consideration. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure review of the totality of the evidence. The appeal is again REMANDED to the RO via the AMC. VA will notify the appellant if further action is required. REMAND Remand is required to secure compliance with VA's duty to assist the Veteran in substantiating his claims, and for due process. 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159, 20.1304(c); Stegall v. West, 11 Vet. App. 268, 271 (1998); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). With regard to all remanded claims, updated VA treatment records may be helpful in adjudication of the claim, and should be obtained. Hearing Loss and Tinnitus In June 2013, within 90 days of recertification of the appeal to the Board following remand, the Veteran submitted a report of private audiometry from Dr. JAC, along with an opinion relating the diagnosed hearing loss disability to service. The Veteran failed, however, to waive initial RO consideration of the new evidence, and so remand is required to allow such consideration. 38 C.F.R. § 20.1304(c). The Board would normally merely solicit submission of a waiver by the Veteran and/or his representative, thereby allowing the appeal to move forward at a faster pace. However, the newly submitted evidence is inconsistent with the other evidence of record, and would require remand in any case to seek further examination to confirm the reported findings. It also indicates some worsening of hearing loss. Therefore, remand at this time actually affords the Veteran the most efficacious treatment and use of judicial resources. Accordingly, on remand, the Veteran should be afforded a new audio examination to determine the current status of any hearing disabilities and to address the potential conflicting evidence. Left Eye In February 2013, the Board remanded the matter of service connection for the left eye for an examination and medical opinion. A June 2009 VA examiner had stated that the left eye disability was "possibly" related to an in-service 1953 motor vehicle accident in which the Veteran sustained a head injury, to include trauma in the area of the left eye. However, when asked to clarify the opinion, the examiner stated he could not render an opinion according to the applicable "at least as likely as not" without resorting to mere speculation. He did not explain why speculation would be required, however, and hence the opinion, or lack thereof, was rendered inadequate. Jones v. Shinseki, 23 Vet. App. 382 (2010). The Board therefore directed that a new examination be obtained, along with an adequate nexus opinion. The Board specifically directed that the examiner must consider specific service treatment records (STRs) from before and after the April 1953 accident documenting the onset of "eye trouble." In May 2013, a new examination was performed, with a new examiner. Although the examiner indicated that the claims file had been reviewed, there is no reference to the specific STRs mentioned by the Board in the remand. Worse, the examiner did not initially offer the required nexus opinion, and an addendum was required. That addendum concludes that a nexus opinion cannot be offered without resort to speculation, as it is impossible to determine when the current visual field defect arose in the absence of prior visual field exams. Such a study was included in the STRs the examiner was directed to consider. The clear failure of the examiner to consider and discuss the records attention was specifically directed to, and the misstatement regarding the existence of relevant evidence, has resulted in a failure to comply with the Board's February 2013 remand order. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, further remand is, regrettably, required to ensure compliance. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records from the VA medical center in Dallas, Texas, and all associated clinics, as well as any other VA facility identified by the Veteran or in the record, for the period of May 2013 to the present. 2. Schedule the Veteran for a VA eye examination. The claims folder must be reviewed in conjunction with the examination. All necessary diagnostic studies must be performed, and the examiner must identify all current conditions of the left eye. For each diagnosed condition, the examiner must opine as to whether such is at least as likely as not (50 percent probability or greater) caused or aggravated by military service, to include the April 1953 motor vehicle accident. The examiner must clearly state whether any portion of any current left eye disability was first manifested on active duty. The examiner must consider and discuss STRs documenting 20/20 uncorrected distance vision during the August 1952 entrance examination; the evidence of an April 1953 motor vehicle accident that resulted in multiple facial lacerations and chest pain; a July 1953 treatment record (to include visual field study) documenting decreased visual acuity in the left eye and an absolute scotoma in the lower half of the eye that "probably is result of hemorrhage into the superior part of left optic nerve or [] direct trauma to the left optic nerve" that had shown no changes in three months and was probably permanent; a November 1959 flight examination that showed uncorrected distance acuity in the left eye of 20/30 and corrected to 20/20; a subsequent November 1959 record documenting "eye trouble"; and an undated initial issuance of prescription eyeglasses to the Veteran. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Schedule the Veteran for a VA audio examination. The claims folder must be reviewed in conjunction with the examination. All necessary testing must be accomplished. The examiner must describe the extent of current hearing loss, if any, and state whether a disability exists for VA purposes. The presence or absence of tinnitus must also be addressed. In doing so, the examiner must discuss the private June 2013 testing, showing a Maryland CNC speech recognition score of 92 percent bilaterally, and to the extent possible address any conflict in findings. The examiner must opine as to whether any currently diagnosed disability (hearing loss and/or tinnitus) is at least as likely as not caused or aggravated by military service, to include noise exposure from jet engines as a mechanic. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). 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 A. PAPPAS 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).