Citation Nr: 1414052 Decision Date: 04/01/14 Archive Date: 04/11/14 DOCKET NO. 11-02 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for an eye disorder. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1964 to April 1972. This case comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision from the Newark, New Jersey Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The Veteran's Virtual VA electronic claims file and the Veterans Benefits Management System (VBMS) paperless claims processing system have been reviewed in conjunction with the current appeal. A review of the documents reveals that they are duplicative or irrelevant to the issues on appeal. 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 In August 2010, the Veteran was afforded a VA eye examination. The examiner noted that the Veteran had a history of blepharitis, but did not find any current clinical signs of blepharitis. The Veteran's VA treatment records do show, however, that the Veteran has been treated for blepharitis on at least several occasions, including in April 2009. As the Veteran has had this this disorder during the period on appeal, an addendum opinion is needed regarding the relationship of this disorder to service. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran was also given a VA audiology examination in January 2009. While the text of the examiner's opinion has been printed and associated with the claims file, the first two pages of the examination report have not been associated with either the paper or the electronic claims file. The complete examination report must be of record before his issue can be adjudicated. Furthermore, the examiner's opinion found that the Veteran's hearing loss was less likely as not a result of noise exposure in the military primarily because the Veteran's "whisper test" administered at separation was normal, despite the examiner's acknowledgment that such tests were not sensitive to shifts in high frequencies. Service connection for hearing loss cannot be denied solely because there was no evidence of this disorder during active duty, and the Board therefore finds that an addendum opinion on the etiology of the Veteran's hearing loss is also needed. See Hensley v. Brown, 5 Vet. App. 155 (1993). The December 2010 statement of the case also lists as evidence a hearing examination held on March 24, 2010 and an eye examination held on April 28, 2009. These examinations reports are not of record. All relevant VA examination reports and VA treatment records must be obtained and associated with the claims file. See 38 C.F.R. § 3.159(c)(2) (2013); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain and associate with the claims file the complete January 2009 audiology report and any other outstanding VA examination reports, including the March 2010 audiological examination and the April 2009 eye examination referenced in the December 2010 statement of the case, as well as all relevant treatment records from the Philadelphia VA Medical Center dating since April 2009. 2. The RO/AMC then should return the claims file to the VA examiner who conducted the August 2010 VA eye examination and request that he prepare an addendum to the examination report which addresses the following: (a) Please state all eye disorders for which the Veteran has been diagnosed since October 2008. (b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that any of the Veteran's diagnoses, either currently or during the course of the appeal period, are/were etiologically related to any event or injury in service? Please address the Veteran's assertions that since he had Bell's palsy in service, his left eye will not close all the way and this has in part caused his long-term problems with eye dryness and irritation. The examiner must be provided access to the claims folder, any records contained in Virtual VA or VBMS, and a copy of this remand. The examiner must specify in the report that the claims file and all electronic records have been reviewed. The examining physician must provide both clear conclusions and a thorough and well-reasoned medical explanation supporting any opinion offered, and the report should include a discussion of the Veteran's documented medical history, statements, and assertions. If the examiner cannot provide an opinion, the examiner must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered. If the examiner who conducted the August 2010 VA examination is not available, the record should be forwarded to a suitable substitute. If it is concluded that by either the August 2010 examiner or the substitute examiner that a new examination is indicated, the Veteran should be scheduled for a new VA examination with an examiner who will address the questions listed above. 3. The RO/AMC should return the claims file to the VA examiner who conducted the March 2009 VA audiological examination and request that she prepare an addendum to the examination report. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any hearing loss was incurred in service, or is the result of exposure to acoustic trauma during the Veteran's period of service and provide a full explanation for this finding. The examiner is reminded that the absence of any documented in-service hearing loss is not necessarily fatal to a claim for service connection. It should also be indicated whether the type of hearing loss found, if any, is the type that might be due to acoustic trauma, as opposed to disease, infection, advancing age, or other cause, and the nature of the Veteran's post-service noise exposure must be discussed. The examiner must specifically acknowledge and discuss the Veteran's reports of the extreme acoustic trauma he experienced in service from working with explosives and his assertions that his bilateral hearing loss first manifested during or immediately after service. The examiner must be provided access to the claims folder, any records contained in Virtual VA or VBMS, and a copy of this remand. The examiner must specify in the report that the claims file and all electronic records have been reviewed. The examining physician must provide both clear conclusions and a thorough and well-reasoned medical explanation supporting any opinion offered, and the report should include a discussion of the Veteran's documented medical history, statements, and assertions. If the examiner cannot provide an opinion, the examiner must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered. If the examiner who conducted the March 2009 VA examination is not available, the record should be forwarded to a suitable substitute. If it is concluded that by either the March 2009 examiner or the substitute examiner that a new examination is indicated, the Veteran should be scheduled for a new VA examination with an examiner who will address the questions listed above. 4. The Veteran is hereby notified that it is his responsibility to report for any examination scheduled and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. Then, the Veteran's claims should be readjudicated. If any benefit remains denied, the Veteran and his representative must be furnished with a supplemental statement of the case and given an opportunity to respond before this case is returned 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). 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. 2013). _________________________________________________ D. C. Spickler 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).