Citation Nr: 1617147 Decision Date: 04/29/16 Archive Date: 05/04/16 DOCKET NO. 12-33 942A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for tinnitus. 2. Entitlement to service connection for a visual disorder. 3. Entitlement to service connection for a cervical spine disability. 4. Entitlement to service connection for right lower extremity radiculopathy. 5. Entitlement to service connection for right leg strain. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran had active service from April 1989 to February 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In connection with this appeal, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge in January 2016. A transcript of that hearing has been associated with the claims file. The issues of entitlement to service connection for a visual disorder, a cervical spine disability, right lower extremity radiculopathy, and right leg strain are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT In testimony at his Board videoconference hearing in January 2016, the Veteran withdrew the issue of entitlement to an initial rating in excess of 10 percent for tinnitus from appellate consideration. CONCLUSION OF LAW The criteria for withdrawal of the appeal, as to the issue of entitlement to an initial rating in excess of 10 percent for tinnitus, by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Dismissed Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2015). Withdrawal may be made by the appellant or by his or her authorized representative, and except where withdrawn on record at a hearing, must be in writing. 38 C.F.R. § 20.204. With regard to the appeal of entitlement to an initial rating in excess of 10 percent for tinnitus, the issue was withdrawn on record by the Veteran at his Board videoconference hearing in January 2016. Transcript at p. 19. The Veteran's oral statement during his hearing, memorialized in writing in the transcript, as well as the signed and dated written statement submitted the same day, satisfies the requirements for the withdrawal of a substantive appeal. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). There remain no allegations of errors of fact or law for appellate consideration, as to that issue. Accordingly, as to the issue of entitlement to an initial rating in excess of 10 percent for tinnitus, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER The appeal for entitlement to an initial rating in excess of 10 percent for tinnitus is dismissed. REMAND In April 2015, the Veteran was afforded a VA eye examination wherein the examiner found that his diagnosed right eye keratoconus and left eye corneal transplant were not related to service. For a variety of reasons, the Board finds this examination opinion inadequate for adjudication purposes. Chiefly, the examiner's rationale for this opinion was essentially predicated on VA treatment medical records dated after 2012. Essentially, the examiner opined that since these records revealed his eyes were currently in stable condition service connection was not warranted. Importantly, the examiner failed to explain why the current stability of his eye conditions was relevant to a determination of service connection. Moreover, the examiner failed to discuss the significance of his previous diagnoses of left eye keratoconus post service and anisometropia, hyperopia, astigmatism, and amblyopia in-service. See November 2012 South Texas HCS records and May 1992 service treatment records. As a result of the foregoing, the Board finds this examination opinion inadequate for adjudication purposes. With that said, review of the record reflects that there are outstanding VA treatment medical records not in evidence. Notably, the March 2015 examiner reported that the claims file only contained follow-up records conducted after the Veteran's corneal transplant and no preoperative records. Additionally, the examiner noted that treatment medical records from his ophthalmologists Drs. Rivera, O'Conner and Caldwell "were not available for review." After reviewing the claims file the Board finds no indication that any of these records were ever in evidence. As these records are considered to be highly probative on remand an attempt should be made to associate them with the claims file. The Board notes that the Veteran has testified that he sought treatment for his eye disabilities immediately upon service separation at Wilford Hall Medical Center, a U.S. Air Force medical treatment facility. These records are also not in evidence. As these records could potentially shed light on the nature of his eye disabilities immediately following service, an attempt to obtain them should also be made. Turning to the Veteran's remaining claims, he asserts that he has disabilities of the right leg, cervical spine and lower right extremities which are the result of service. In pertinent part, he testified to, sustaining "whiplash" as a reflexive result of reacting to "debris" flying into his eyes while working as a dental technician. See Board Hearing Transcript January 2016. He reported that the force of this injury led to the initial development of his cervical spine condition and radiculopathy. He also reports injuring his right leg after striking it against a dental treatment table. Overall, he asserts that these injuries were collectively aggravated by repetitive use/physical stress caused by his in-service work as a dental technician. Finally, he testified that since these injuries he has experienced intermittent swelling and inflammation of his neck and chronic tingling/burning in his right lower extremities. In support of his claims, he testified that he received treatment for his reported cervical spine disability within a year of service separation at the above noted Wilford Hall Medical Center. He testified that this treatment coincided with his aforementioned treatment for his eye disabilities. He also testified to having had an "overall exam" done at a VA facility following service separation. He stated that this VA examination concluded with a recommendation that he obtain additional specialty appointments for his symptomology. Review of the claims folder reflects that none of these reported records are in evidence. As these records could provide potentially probative information as to a connection between the Veteran's reported disabilities/symptomology and service they should be obtained. Lastly, the claims file contains no indication that the Veteran's service personnel records or his separation examination have ever been in evidence. Therefore on remand an attempt should be made to locate these records and associate them with the clams file. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran's service personnel records and separation examination from the National Personnel Records Center (NPRC) and other appropriate records depositories. If it is determined that further attempts to obtain such records would be futile, the file should be so annotated, and the Veteran so notified. 2. Contact the Veteran and ask him to provide the name(s) of all VA and non-VA physicians and healthcare providers that have treated him for his disabilities since service discharge. He should be provided Authorization and Consent Forms (Form 21-4142) to Release Information to the Department of Veterans Affairs. Appropriate steps should be made to obtain any identified records. In conjunction with this directive the RO should: a) Request that the Veteran specifically authorize release of his Wilford Hall Medical Center records dated following service separation in 1995. b) Request clarification from the Veteran as to when he obtained an "overall" examination from the VA after service separation. c) Request clarification from the Veteran as to which facility performed his corneal transplant, as well as, the treatment both before and after his surgery. d) Request records prepared by Drs. Rivera, O'Conner and Caldwell. Treatment medical records indicate that Drs. Rivera and O'Conner are VA physicians whereas Dr. Caldwell practices at the Brooke Army Medical Center. See August 2012 South Texas HCS Eye Optometry Notes. As such, an authorization form for Brooke Army Medical Center should be obtained from the Veteran. Special attention is directed to August 2012 treatment medical records which reflect that these physicians were in direct communication with the Veteran's primary ophthalmologist Dr. Le. See South Texas HCS treatment medical records. 3. Once the record is developed to the extent possible, the RO should determine whether VA examinations and opinions are warranted with regard to the Veteran's claims for service connection for cervical spine disability, right lower extremity radiculopathy, and right leg strain. If deemed necessary these examinations should be scheduled and completed. 4. Then return the claims file to the examiner who conducted the April 2015 VA examination for an addendum opinion regarding the nature and etiology of his current disabilities. If this examiner is not available, seek an opinion from another qualified clinician. The Board leaves it to the discretion of the clinician selected to offer the opinion to determine whether the Veteran should be reexamined. After reviewing the claims folder including lay statements, service treatment records and treatment medical records the examiner must: a) Identify/diagnose all current eye disabilities present during the pendency of the claims period. b) For each identified eye disability the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that it was incurred during service. c) If any visual defect is found to be a result refractive error, was there additional disability superimposed upon the refractive error during the Veteran's service or lifetime? If so, is it at least as likely as not (i.e., equally probable) that the superimposed disability was related to either injury during the Veteran's service? d) In rendering the above opinions, the examiner must address the following: e) Service treatment records which indicate clinically normal eyes on service entrance and then severe disabilities years after. See 1989 Entrance examination and May through July 1992 service treatment records. f) The Veteran's initial diagnoses of anisometropia, hyperopia, amblyopia and astigmatism in May 1992. g) The significance of his in-service physician's uncertainty as to whether his anisometropia, hyperopia, amblyopia and astigmatism were "congenital v. path." See May 1992. h) In-service physician's notation that they were "shocked" at the severity of eye disabilities in relation to his use of his eyes. See May 15, 1992 Service treatment records. An in-service physician indicated being concerned at the present state of the Veteran's eyes as he had no previous eye history. See June 1992 service treatment records. i) The Veteran's lay statements and testimony asserting his belief that his disabilities were caused by an adverse reaction to mustard gas at boot camp or "debris" from dental work falling into his eye. Complete rationale should be given for all opinions and conclusions expressed. 5. The RO should then review the issue on appeal based on any additional evidence. If the benefits sought on appeal are not granted, the RO should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. 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 2014). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs