Citation Nr: 1339876 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 10-18 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for an eye disorder. 4. Entitlement to service connection for alcoholism, as secondary to anxiety disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION The Veteran had active service from November 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. After reviewing the contentions and evidence of record, the Board finds that the issues on appeal are more accurately stated as listed on the title page of this decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks entitlement to service connection for bilateral hearing loss, tinnitus, an eye disorder, and alcoholism. Although the Board regrets the additional delay, 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 claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Bilateral Hearing Loss and Tinnitus First, the Board notes that personnel records indicate the Veteran participated in combat. As such, exposure to acoustic trauma is conceded. The Veteran was afforded a VA examination in November 2008. He was diagnosed with tinnitus and bilateral sensorineural hearing loss. The examiner opined that the Veteran's tinnitus and hearing loss were not the result of military activity as the Veteran's service treatment records indicated normal hearing for both ears at the time of his separation from service. The Board finds this opinion inadequate. The absence of documented hearing loss in service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The VA may not simply disregard lay evidence because it is unaccompanied by medical evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A remand is necessary to obtain new VA medical opinions. In rendering the new opinions, the examiner should consider the Veteran's statements regarding the occurrence of his hearing loss and tinnitus, in addition to his statements regarding the continuity of symptomatology. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the service treatment records to provide a negative opinion). Eye Disorder The Veteran indicated in his VA Form 9 that he was diagnosed with cataracts at an early age, post service. The Veteran asserts an eye surgeon told him that being near bombings could cause eye damage as well as hearing damage, due to the loud noises and concussions. See March 2010 VA Form 9. The Board notes that personnel records indicate the Veteran was in an area in Vietnam that was attacked multiple times. Although it was many years ago, a remand is necessary to attempt to obtain these treatment records. Additionally, to date, the Veteran has not yet been afforded a VA examination for his claimed eye disorder. As such, a remand is also necessary to afford the Veteran a VA examination for his eye disorder, and to obtain a medical opinion regarding the nature and etiology of any currently diagnosed eye disorder. Alcoholism The Veteran indicated that he drank alcohol during service as a way to feel more in control while in Vietnam. See March 2010 VA Form 9. He asserted that he was continuously surrounded by the enemy and unable to sleep due to guns firing and the stress he felt. See June 2008 statement. The Board notes that service connection for alcoholism on a direct basis must be denied as a matter of law. See 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. §§ 3.1(m), 3.301(d). Importantly, however, the United States Court of Appeals for the Federal Circuit has held that there can be service connection for compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). The Veteran is diagnosed with alcohol dependence. See November 2009 VA examination. Additionally, the Board notes that during a January 2009 Mental Health consultation, the Veteran indicated that he increased his alcohol use in Vietnam. See January 2009 treatment note. The Veteran was granted service connection for an anxiety disorder in a March 2010 rating decision. As such, on remand, the Veteran should be given notice of the requirements for establishing service connection on a secondary basis to comply with the Veterans Claims Assistance Act of 2000 (VCAA). Then, a medical opinion should be obtained to determine whether the Veteran's alcoholism is proximately due to or aggravated by his anxiety disorder. Accordingly, the case is REMANDED for the following actions: 1. Send a VCAA notice letter to the Veteran. The letter should notify him of the information and evidence necessary to substantiate his claim of alcoholism, as secondary to an anxiety disorder. Notice regarding secondary service connection must be included. The letter should also contain notice of the manner in which both disability ratings and effective dates are assigned for awards of disability benefits. See Dingess/Hartman, 19 Vet. App. at 473. The Veteran should be given an opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file. 2. Obtain and associate with the claims file all relevant updated treatment records. Additionally, ask the Veteran to identify the eye surgeon who informed him that his cataracts were a result of being near bombings in service. An attempt should be made to obtain these records. 3. Obtain an addendum medical opinion pertaining to the Veteran's hearing loss and tinnitus. If the requested opinions cannot be offered without examining the Veteran, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of his bilateral hearing loss and tinnitus. After a review of the record, to include all medical records and lay statements contained therein, the examiner should offer an opinion regarding the following: Based on a full review of the record, to include the Veteran's lay statements regarding the incurrence and continuity of symptomatology of his bilateral hearing loss and tinnitus, is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent): a) that the Veteran's hearing loss had its onset during service or is in any other way causally related to his active service, to include the Veteran's confirmed acoustic trauma during service; and, b) that the Veteran's tinnitus had its onset during service or is an any other way causally related to his active service, to include the confirmed acoustic trauma during service, OR is proximately due to or aggravated by his hearing loss. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. In providing this opinion, the examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Afford the Veteran a VA examination for an eye disorder. All current eye disorders should be diagnosed. For each eye disorder diagnosed, based on a full review of the record, to include the Veteran's lay statements regarding the incurrence and symptomatology of the eye disorder, please offer comments and an opinion whether it is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's eye disorder is causally or etiologically due to service, to include being in proximity of loud explosions/bombings. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. In providing this opinion, the examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. Obtain a medical opinion regarding the Veteran's alcoholism. Based on a full review of the record, to include the Veteran's lay statements regarding his alcoholism, please offer comments and an opinion whether it is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's alcoholism is proximately due to or aggravated (beyond the natural progression) by his service-connected anxiety disorder. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. In providing this opinion, the examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. The RO should then readjudicate the claims. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran 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). _________________________________________________ WAYNE M. BRAEUER 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) (2013).