Citation Nr: 1512813 Decision Date: 03/26/15 Archive Date: 04/03/15 DOCKET NO. 11-09 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable disability rating for conjunctivitis/blepharitis. 2. Entitlement to service connection for residuals of a right parietal occipital craniotomy, status post resection of meningioma (claimed as a brain tumor), to include as due to exposure to herbicides in service. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran had active duty service from August 1966 to July 1969, including verified service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied a compensable rating for conjunctivitis and denied service connection for right parietal occipital craniotomy status post resection of meningioma (claimed as a brain tumor). The Veteran testified before the undersigned at a Board video teleconference hearing in December 2014. A transcript of the hearing is associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although any additional delay is regrettable, this appeal must be remanded for further development. I. Increased Rating for Conjunctivitis/Blepharitis As an initial matter, the Board notes that the Veteran has identified outstanding records potentially relevant to his claim that have not been obtained. In this regard, he stated that he would be undergoing an annual eye examination at VA in January 2015. See December 2014 Board Hearing Transcript (Tr.) at 16. Although the Veteran indicated at the December 2014 hearing that he would attempt to obtain and submit a copy of his annual examination, this information has not yet been obtained. Id. at 16-17. As VA records are deemed constructively before the Board, a remand is now necessary to obtain this potentially relevant evidence. See Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992) (per curiam) (indicating that documents, such as medical records generated by VA, are considered constructively part of the record before the Board). Additionally, the Board finds that the matter must be remanded for a new and contemporaneous VA examination of the eye. In this regard, the Veteran testified that his eye condition has increased in severity from the time of the last VA examination in June 2009. See Board Hearing Tr. at 14. His statements are also corroborated by the evidence of record. See February 2011 VA nurse practitioner letter ("[The Veteran] is currently being treated for a chronic dry eye condition, photophobia, and chronic conjunctivitis with objective symptoms to include crusting of eyelids upon exam each time the [patient] is seen, as well as reddened sclera. . . . It is my estimation that this is chronic condition which will be an ongoing process.") Moreover, the Board also recognizes that the Veteran has complained of additional eye symptomatology, including dry eye syndrome, light sensitivity/photosensitivity/ photophobia, and decreased visual acuity, especially with regard to his peripheral vision. See Board Hearing Tr. at 7-9. VA General Counsel has stated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995) (stating that while the Board is not required to direct a new examination simply because of the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination); compare with Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) (the "mere passage of time" between a prior VA medical examination and the adjudication of a claim is not, in and of itself, sufficient to compel VA to provide the veteran with a new, contemporaneous medical examination). Because the Veteran has indicated that his eye disability has increased in severity since the most recent VA examination, which was conducted almost six years ago, a new examination should be conducted on remand to ensure that the Veteran's eye disability can be properly rated. Caffrey v. Brown, 6 Vet. App. 377 (1994). II. Service Connection for Residuals of a Right Parietal Occipital Craniotomy, Status Post Resection of Meningioma With regard to his claimed brain tumor, the Veteran has also identified outstanding records potentially relevant to his claim that have not been obtained. First, the Veteran testified that he sees a VA psychologist and social worker on a monthly basis and also attends group meetings. See December 2014 Board Hearing Tr. at 18. A review of the record reflects that the group meetings also appear to be conducted by the social worker. See January 2012 VA treatment records (noting that the Veteran sees H.C., who is social worker, in group therapy and individually); November 2013 VA treatment records (noting that the Veteran continues to see H.C.). Second, VA treatment records also indicate that the Veteran was referred for a brain MRI in August 2012, but a copy of any MRI results is absent from the record. Accordingly, on remand, the above-identified outstanding VA records must be obtained. A remand for a new VA examination and opinion is also necessary. The Board recognizes that the Veteran was provided with a VA brain/spinal cord examination in June 2010. Although the VA examiner diagnosed status post right parietal occiput craniotomy, resection of meningioma, the examiner did not provide an opinion regarding the etiology of this disorder. Given the Veteran's confirmed service in Vietnam, exposure to herbicides in conceded. Additionally, the Veteran and his spouse have provided lay statements indicating that several physicians have stated that, due to the size of the removed brain tumor, it must have been present for many years. Taken together, this evidence satisfies the low threshold for obtaining a nexus opinion set forth in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As the existing VA examination, which does not provide a nexus opinion, is deemed inadequate, a new VA examination and opinion must be provided. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA takes action to furnish a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following actions: 1. Obtain all recent and outstanding VA treatment records relevant to the claims on appeal, to specifically include the following identified records: (a) A copy of the results of a brain MRI ordered in August 2012 (see August 2012 VA treatment report); (b) Copies of group and individual social worker sessions from December 2011 to the present; (c) Copies of monthly psychiatrist visits from January 2014 to the present; and (d) A copy of the Veteran's annual eye examination, likely conducted around January 2015 (see Board Hearing Tr. at 16). 2. After completing the development outlined in steps (1) and (2) above, obtain a new VA examination to assess the current nature, extent, and severity of the Veteran's service-connected conjunctivitis/blepharitis. The electronic claims file (i.e., all relevant records contained in Virtual VA and VBMS) must be provided to and reviewed by the examiner. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should identify and describe in detail all manifestations of the Veteran's service-connected conjunctivitis/blepharitis. In doing so, the examiner should specifically state whether the Veteran's claimed symptoms of dry eye syndrome, photophobia, and/or decreased visual acuity and peripheral vision are manifestations of his service-connected eye disability. In providing this information, the examiner should acknowledge and discuss the significance, if any, of: (1) the January 2009 VA psychiatrist's letter, which notes how "his brain tumor was affecting his vision"; (2) the March 2009 Social Security Administration (SSA) private psychological evaluation, which notes the Veteran's reports that his vision was affected as a result of the tumor and that he currently continues to experience vision problems; (3) the December 2009 VA treatment report, which includes an impression of "Brain Tumor with questionable [visual field] defects"; and (4) the January 2010 VA treatment report, which states that "MRI findings would not cause any right [visual field] issues." Finally, the examiner should discuss the degree of occupational impairment attributable to the Veteran's service-connected eye disability. In particular, the examiner should describe what types of employment activities would be limited because of the Veteran's service-connected disability, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completing the development outlined in steps (1) and (2) above, obtain a new VA examination regarding the nature and etiology of the Veteran's claimed residuals of a brain meningioma. The electronic claims file (i.e., all relevant records contained in Virtual VA and VBMS) must be provided to and reviewed by the examiner. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's brain meningioma and/or any associated residuals had its onset in or are otherwise etiologically related to service, including his conceded exposure to herbicide agents in the Republic of Vietnam. In providing this opinion, the examiner should acknowledge and discuss the significance, if any, of the statements provided by the Veteran and his spouse to the effect that physicians have indicated that, due to the size of the tumor, it was likely present for many years. See, e.g., April 2009 statement ("DUE TO . . . THE SIZE OF THE TUMOR-THE SURGEONS AGREED IT HAD BEEN THERE FOR MANY YEARS"); Board Hearing Tr. at 19 ("They told me they had a panel of 13 doctors and no one had ever seen [a tumor] so large. And that's why they said his brain tumor was growing for years and years and years."). A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 or by the U.S. 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 2014). _________________________________________________ NICOLE KLASSEN Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the U.S. 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) (2014).