Citation Nr: 1415559 Decision Date: 04/09/14 Archive Date: 04/15/14 DOCKET NO. 10-35 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether there is new and material evidence to reopen a claim of entitlement to service connection for a right foot disability, to include as secondary to a left foot disability. 2. Entitlement to service connection for a right foot disability, to include as secondary to a left foot disability. 3. Whether there is new and material evidence to reopen a claim of entitlement to service connection for bilateral visual impairment. 4. Entitlement to service connection for bilateral visual impairment. 5. Whether there is new and material evidence to reopen a claim of entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. 6. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. 7. Entitlement to service connection for bilateral cataracts. 8. Entitlement to an increased rating for left foot disability, currently evaluated as 10 percent disabling. 9. Entitlement to an increased rating for bilateral hearing loss, currently evaluated as noncompensably disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served from May 1971 to June 1975, November to December 1976, and February to September 1991, including periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned at a Travel Board hearing in June 2011. As a preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless record, which has been reviewed. The Veteran appears to have raised issues of entitlement to service connection for a dental condition, and whether new and material evidence was received to reopen a claim of entitlement to service connection for the right shoulder and elbow. These issues have not, however, been adjudicated by the Agency of Original Jurisdiction. As such, the Board does not have jurisdiction and refers these issues for clarification from the Veteran, and if proper, adjudication. The issues of entitlement to increased ratings for the left foot disorder, and bilateral hearing loss, and for entitlement to service connection for a right foot disorder, cataracts, visual impairment and diabetes mellitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a May 2006 rating decision, the RO denied entitlement to service connection for bilateral foot condition. An appeal of that decision was not initiated, and the decision became final. 2. Evidence received since the May 2006 rating decision, by itself or when considered with evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of service connection for a right foot disorder. 3. In a May 2006 rating decision, the RO denied entitlement to service connection for impaired vision. An appeal of that decision was not initiated, and the decision became final. 4. Evidence received since the May 2006 rating decision, by itself or when considered with evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of service connection for impaired vision. 5. In a May 2006 rating decision, the RO denied entitlement to service connection for diabetes mellitus. An appeal of that decision was not initiated, and the decision became final. 6. Evidence received since the May 2006 rating decision, by itself or when considered with evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of service connection for diabetes mellitus. CONCLUSIONS OF LAW 1. The May 2006 rating decision that denied the Veteran's claim of entitlement to service connection for bilateral foot condition is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. Evidence received since the May 2006 rating decision is new and material, and the claim of service connection for a right foot condition is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The May 2006 rating decision that denied the Veteran's claim of entitlement to service connection for impaired vision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 4. Evidence received since the May 2006 rating decision is new and material, and the claim of service connection for impaired vision is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 5. The May 2006 rating decision that denied the Veteran's claim of entitlement to service connection for diabetes mellitus is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 6. Evidence received since the May 2006 rating decision is new and material, and the claim of service connection for diabetes mellitus is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determinations for the decisions herein, no further discussion of compliance with VA's duty to notify and assist is necessary. After reviewing all of the evidence of record available at the time of a May 2006 rating decision in light of the evidence submitted since that decision, to include medical or lay evidence that shows the existence of a right foot disorder, impaired vision, and diabetes mellitus, and medical and or lay testimony to relate each of these to service, the Board finds that the new evidence raises a reasonable possibility of substantiating the appellant's claims of entitlement to service connection for a right foot disorder, visual impairment and diabetes mellitus, type II. Accordingly, the claims are reopened. ORDER The claim of entitlement to service connection for a right foot condition is reopened. The claim of entitlement to service connection for impaired vision is reopened. The claim of entitlement to service connection for diabetes mellitus is reopened. REMAND Increased Ratings Left Foot The Veteran's left foot condition is currently service connected and rated as 10 percent disabling. At the Veteran's June 2011 Board hearing, he indicated that his left foot condition has worsened over the previous two to three years, which includes the time period subsequent to his most recent 2009 VA examination. As such, the Board finds that another VA examination is warranted to ascertain the current level of severity of his left foot condition. Bilateral Hearing Loss The Veteran's bilateral hearing loss disability is currently service connected and rated as noncompensably disabling. At the June 2011 VA examination the Veteran contended that his hearing loss was particularly bad, and had worsened since his most recent 2009 VA audiological examination. As such, the Board finds that another VA examination is warranted to ascertain the current level of severity of his hearing loss. Service Connection The Board observes that it would be useful to have a full accounting of the Veteran's periods of service, specifically indicating his ACDUTRA and INACDUTRA. Right Foot The Board observes that having reopened the claim of entitlement to service connection for a bilateral foot condition, and noting that the left foot condition is already service-connected, the claim is recharacterized as one of entitlement to service connection for a right foot condition. The Veteran contends that compensating for his service-connected left foot disability has caused his right foot condition. The Veteran's VA examination in 2010 did not find a disability of the right foot, and did not include an opinion regarding whether any right foot condition was worsened by the left foot. The examiner indicated there was mild tenderness on the arch of the Veteran's right foot. Ultimately, the examiner concluded that he could not resolve the issue of whether the right foot pain and tenderness was due to the remote left foot fascial tear with residual pain and tenderness without resorting to mere speculation. The examiner failed to provide reasoning for this conclusion. As such another VA examination is warranted, and the examiner is requested to provide an opinion as to whether it is at least as likely as not that any right foot disorder is related to service, or caused or worsened by the service-connected left foot condition. In the event that the examiner determines that he cannot provide such an opinion without resorting to mere speculation, then he should explain why this is so, for example, if such examination reflects the limitations of knowledge of the medical community at large as opposed to the examiner's own limitations. Cataracts and Visual Impairment- Service treatment records show that the Veteran reported sand in his eye in June 1985. In April 1986 there was a foreign matter in his left eye and in 1991 the Veteran reported experiencing itching and discharge from his left eye. The Veteran contends that he is entitled to service connection for cataracts, and visual impairment, to include as due to the concussive impact from competitive shooting while in the Army, as well as from the glare of the sun. In June 2011 Dr. C. indicated that the Veteran's visual acuity after cataract surgery, uncorrected, was 20/20 in the right eye, and 20/40 in the left eye. In a November 2009 statement Dr. C. indicated that the Veteran had a posterior subcapsular cataract in the right eye requiring successful cataract surgery, and that cataracts could be caused by repetitive trauma. Dr. C. indicated that shooting could cause repetitive trauma. The Veteran reported that the cataracts had affected his visual acuity. The law provides that refractive errors of the eyes are congenital or developmental defects and not disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (2013). VA regulations specifically prohibit service connection for refractive errors of the eyes unless such defect was the subject of aggravation by a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental, or familial origin, unless the defect was subject to a superimposed disease or injury). In this case, the Veteran wore corrective lenses in service, and treatment records show that he had sand in his eye, and he has reported a concussive effect from firing. It is the Board's opinion that a medical opinion in conjunction with the review of the entire record and examination of the Veteran is warranted to indicate whether the Veteran suffers from a current chronic visual impairment that is related to his active duty service. 38 C.F.R. § 3.159(c)(4) (2013). As such, the Board finds that the Veteran should be afforded a VA optometry examination to determine the nature and etiology of any cataracts and visual impairment. Diabetes Mellitus R. K., who identified himself as a certified Emergency Medical Technician (EMT) and retired Command Sergeant Major, reported that he knew the Veteran since 1986 and noticed the Veteran's diabetic symptoms to include swelling and burning feet, increased thirst, problems urinating, increased appetite, vision problems, slow healing, and increased fatigue. A May 2009 record by Dr. K. indicates that he treated the Veteran since January 2001, and that the Veteran had diabetes as of January 17, 2001. However, only those treatment records since 2008 were associated with the record. The Veteran was afforded a January 2010 VA examination wherein the Veteran's claims folder was reviewed. The examiner reviewed the Veteran's history, to include his diabetes mellitus diagnosis since 2001 from King's Daughter Clinic, and his reports of being in contact with Agent Orange when working as a historian with contaminated Vietnam War related objects. The examiner concluded that it was less likely than not that the Veteran's diabetes was related to service. He reasoned that the claim of Agent Orange exposure via items from Vietnam was not scientifically or medically proven. In light of R. K.'s statement listing a variety of symptoms, which may have been early indicators of diabetes, and the examiner's failure to discuss any of these symptoms aside from increased urination and thirst, the Board finds that an addendum opinion should be sought. Accordingly, the case is REMANDED for the following action: 1. To the extent possible, the timeframes of the Veteran's active duty, ACDUTRA, and INACDUTRA should be compiled and provided to the VA examiner for review prior to reaching his/her opinion. 2. Request any available VA treatment records and associate them with the record. 3. Request necessary authorization from the Veteran, and if received, request outstanding private treatment records since 2001 from Dr. K. 4. If, after making reasonable efforts to obtain named records the RO/AMC is unable to secure same, the RO/AMC must notify the Veteran and (a) identify the specific records the RO/AMC is unable to obtain; (b) briefly explain the efforts that the RO/AMC made to obtain those records; (c) describe any further action to be taken by the RO/AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 5. Following receipt of all available outstanding records, schedule the Veteran for VA examinations, to include (A) optometry, (B) audiological, and (C) general medical. Provide each examiner the claims folder, to include access to Virtual VA and VBMS. (A) Following ocular testing as necessary, and claims folder review, the examiner should render a medical opinion as to whether the evidence shows that the Veteran's visual impairment was at least as likely as not subject to a superimposed disease or injury during military service to include ACDUTRA or due to injury during a period of INACDUTRA, that resulted in chronic disability apart from the original visual impairment at entrance. If the Veteran's current visual impairment in either eye is found to be due to cataracts, is it at least as likely as not (probability of 50 percent or more) that such condition had its onset during service? To the extent possible, please state the approximate date of onset of the cataracts. (B) An audiologist should determine the current severity of the Veteran's hearing loss. In addition to dictating objective test results (Maryland CNC and pure tone threshold testing), the examiner's report should fully describe the effects of the Veteran's hearing loss disability on his occupational functioning and daily activities. (C) Finally, an examiner should be requested to address the nature and etiology of any right foot disability and diabetes mellitus, and the severity of the Veteran's left foot disability. All tests and studies that the examiner deems necessary should be performed. Specifically the examiner should address whether it is at least as likely as not that any diagnosed right foot condition is related to a disease or injury incurred in service or during ACDUTRA, or an injury during INACDUTRA. If not, then the examiner should opine as to whether it is at least as likely as not that any diagnosed right foot condition is (i) caused or (ii) aggravated (permanently worsened) by the left foot disability. The examiner should ascertain the level of severity of the Veteran's service connected left foot disability. The examiner should provide an accurate and fully descriptive assessment of the Veteran's left foot disability, to include indication as to whether, and to what extent, the Veteran experiences likely functional loss due to pain, weakness, excess fatigability, and/or incoordination during flare-ups or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also specifically opine as to whether the Veteran is unable to secure and/or follow substantially gainful employment secondary to his service-connected left foot disability. The examiner should indicate whether the Veteran's diabetes mellitus is related to service, to include due to the reported exposure to herbicide contaminated objects. The examiner should specifically address the symptomatology described in lay statements, and by EMT R. K. A complete and adequate rationale is required for any and all opinions expressed. If the examiner determines that the requested opinion cannot be rendered without resorting to speculation, he or she should so state, and should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record (i.e., additional facts are required), or that the examiner does not have the necessary knowledge or training. 6. The Veteran must be given adequate notice of the date and place of the requested examinations. A copy of all notification letters (and the address where the notice was sent), sent to the Veteran from the VA medical facility scheduling his examination must be associated with the record. The Veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2013). 7. After the requested examinations have been completed, review the examination reports to ensure complete compliance with the directives of this remand. The examination reports should be returned to the examiner if there is any deficiency. 8. After completion of the above, readjudicate the claims. If any issue remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. The appellant 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. 2013). ______________________________________________ M. MAC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs