Citation Nr: 1525487 Decision Date: 06/15/15 Archive Date: 06/26/15 DOCKET NO. 13-32 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for left eye cyst. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to a compensable initial rating for scar, status post cholecystectomy and Nissen fundoplication. 4. Entitlement to a compensable initial rating for headaches. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Marenna, Counsel INTRODUCTION The Veteran had active service from January 1990 to October 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In March 2015, the appellant testified during a videoconference hearing before the undersigned Veterans Law Judge. Unfortunately, VA was unable to produce a written transcript of the proceeding due to audio malfunctions heard throughout the testimony in the Digital Audio Recording System (DARS). The Veteran was informed of this fact in a March 2015 letter and notified that he had the opportunity to testify at another hearing. The Board notes that the Veteran filed an informal substantive appeal in November 2013 appealing additional issues. However, in a March 2014 VA Form 9, the Veteran specifically stated that he only wished to appeal the issues noted on the title page. Thus, the other issues of entitlement to higher ratings for a cyst of the right wrist and bilateral dry eye, and entitlement to service connection for diarrhea, are deemed to be withdrawn. The issues of entitlement to service connection for bilateral hearing loss, entitlement to a compensable initial rating for scar, status post cholecystectomy and Nissen fundoplication, and entitlement to a compensable initial rating for headaches are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's left eye conjunctival cyst was incurred during active service. CONCLUSION OF LAW Service connection for a left eye conjunctival cyst is granted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.159 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that he has a cyst in his left eye that has existed since service. For the reasons that follow, the Board finds that service connection is warranted. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). A July 1986 enlistment examination report indicates the Veteran's eyes were normal. An undated retirement examination report indicates the Veteran had a left eye conjunctival cyst. In his December 2012 claim, the Veteran stated that he had a cyst on the left eyeball that bothered him daily. He stated that the condition started several years before he was discharged from the U.S. Navy. In a March 2013 VA examination, the examiner found that the Veteran had an inactive conjunctival cyst under his left lateral bulbar conjunctiva. The examiner stated that the problem was first diagnosed during his time with the armed forces but was not associated with any known event or trauma or exposure to any environment that this patient encountered during his time in the armed forces. The examiner opined that the condition was less likely than not incurred in or caused by any event he encountered in the armed forces. In a March 2013 addendum opinion, the examiner clarified that: "The Veteran's previously diagnosed left bulbar conjunctival cyst is still present but is inactive, and has been inactive for a number of years. It was diagnosed while in the armed forces." The Board finds the March 2013 VA examiner's opinion to be inadequate. The examiner's finding that the left eye cyst was first diagnosed in service is inconsistent with his opinion that the condition was less likely than not incurred in any event he encountered in the armed forces. As noted above, service connection simply requires the in-service incurrence of a disability. Although the Veteran's conjunctival cyst is inactive, the March 2013 VA examination report indicates that the Veteran has had a cyst during the period on appeal. The Veteran has consistently stated that he has had the cyst since service. See December 2012 claim. The Veteran is competent to report symptoms capable of lay observation and the Board finds him to be credible. The evidence of record, including the Veteran's service records and March 2012 VA examination report is consistent with a finding that the Veteran has a left eye cyst that was first diagnosed in service. The Board finds the Veteran's assertion that he has had the cyst since service to be credible. Accordingly, the Board finds that the Veteran's left eye conjunctival cyst was incurred in service and that he has had it since service. Giving the Veteran the benefit of the doubt, entitlement to service connection for a left eye conjunctival cyst is granted. ORDER Entitlement to service connection for left eye conjunctival cyst is granted. REMAND As noted above, in March 2015, the appellant testified during a videoconference hearing before the undersigned Veterans Law Judge. Unfortunately, VA was unable to produce a written transcript of the proceeding due to audio malfunctions heard throughout the testimony in the Digital Audio Recording System (DARS). The Veteran was informed of this fact in a March 2015 letter and informed that he had the opportunity to testify at another hearing. In May 2015, the Veteran stated that he wished to appear at a new videoconference hearing. As the RO schedules videoconference hearings, the claims must be remanded to schedule the Veteran for a hearing. Accordingly, the case is REMANDED for the following action: Schedule the Veteran for a video conference hearing at the Lincoln, Nebraska RO. The Veteran and his representative should be notified of the date and time of the hearing. 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 2014). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs