Citation Nr: 1630444 Decision Date: 07/29/16 Archive Date: 08/04/16 DOCKET NO. 12-23 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral vision loss. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1989 to February 1993 and from January 2004 to March 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. These matters were previously before the Board in December 2014, when it reopened the instant claims and remanded them for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is entitled to service connection for bilateral vision loss and bilateral hearing loss disabilities. As set forth in his December 2010 notice of disagreement and August 2012 VA Form 9, the Veteran asserts that his claimed vision loss disability is due to exposure to "sand flies" while serving in the Persian Gulf. The Board observes that the Veteran's service personnel records confirm that he served in the Persian Gulf from August 1990 to March 1991 during Operation Desert Shield/Storm. The Veteran also served in Iraq and Kuwait from February 2004 to February 2005 during Operation Iraqi Freedom. With respect to his claim for service connection for bilateral hearing loss, the Veteran reports that although he "passed" a previous VA audiological examination, he has since "failed" a private audiological test. Although these claims were previously remanded in December 2014, another remand is necessary to ensure that there is a complete record upon which to afford the Veteran every possible consideration. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). In December 2014, the Board remanded the Veteran's claims to attempt to obtain outstanding, pertinent VA and private treatment records. Specifically, the Board referenced the Veteran's August 2012 VA Form 9, in which he reported that he was receiving both VA and private medical treatment for his loss of his vision. Additionally, the Veteran referenced a "failed" a private audiological test. As these records did not appear to be included in the Veteran's claims file, the Board remanded the instant claims to obtain outstanding VA treatment records dated from September 2012, in addition to pertinent private treatment records. Following the Board's remand order, VA treatment records were obtained and associated with the Veteran's claims file. In May 2015, the RO sent the Veteran a letter asking him to identify all locations of medical treatment pertaining to his loss of vision and failed private audiological test. Blank authorization forms were attached to the letter for the Veteran to complete and return to VA for it to assist him in obtaining identified treatment records. Based on a review of the claims file, the Veteran has not responded to the May 2015 letter. In a July 2016 brief, the Veteran's representative maintained that the Veteran has had some recent issues concerning returned mail. The record indicates that the Board's December 2014 order was returned to VA as undeliverable. The Board notes that based on a review of the Veteran's applications for compensation, he has received private treatment pertaining to his claimed vision loss at the Sabates Eye Center and the Truman Medical Center, and records from both facilities were associated with the Veteran's claims file in 2007. A review of VA treatment records obtained since the Board's remand suggests that the Veteran might have received private medical treatment concerning vision loss from "KUMC," "Iowa Eye," "Retina Associates," and/or Dr. Rosenthal. As the claims are being remanded for additional development, the AOJ should attempt to obtain outstanding treatment records that are pertinent to the Veteran's claims. 38 U.S.C.A. § 5103A(b)-(c); 38 C.F.R. § 3.159(c)(1)-(2). Under VA's duty to assist, it must provide a medical examination or obtain a medical opinion if necessary to decide a claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Here, the Veteran has not been afforded a VA examination pertaining to his claimed vision loss disability. The Board notes that VA treatment records dated between July 2012 and February 2013 include assessments of right eye wet macular degeneration; history of left eye macular degeneration; new neovascularization with SRF in macula, right eye, etiology unclear; and progressive vision loss of the left eye with neovascular formation changes. The Board further observes that a September 2012 VA infectious disease note provides that the Veteran was referred to the infectious diseases clinic for loss of vision and findings concerning possible fungal or parasitic infection given the Veteran's sand fly contact in the Persian Gulf. A February 2013 VA infectious diseases treatment record notes that ocular histoplasmosis has been considered, but might be unlikely. In light of these assessments and notations, and the Veteran's contention that his claimed vision loss disability is due to sand fly exposure during service in the Persian Gulf, the Board finds that a VA examination is necessary to determine the nature and etiology of the Veteran's claimed vision loss disability. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McClendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The Board notes that certain eye disorders, such as refractive errors, are not considered diseases or injuries for VA compensation purposes, as they are considered congenital or developmental defects. See 38 C.F.R. §§ 3.303(c), 4.9. Thus, in general, service connection may not be granted for congenital or developmental defects. See 38 C.F.R. § 3.303(c). However, under certain circumstances, service connection may be warranted for congenital or developmental diseases, as opposed to defects. See VAOPGCPREC 82-90; see also 38 C.F.R. § 3.306. Additionally, service connection may be granted for any additional disability that results where a congenital or developmental defect is subject to, or aggravated by, a superimposed disease or injury. See VAOPGCPREC 82-90. As the Board is without medical expertise to determine whether the Veteran's claimed vision loss disability is due to a congenital or developmental defect, such as a refractive error, the VA examiner should address any congenital or developmental disabilities with adequate rationale. With respect to the Veteran's bilateral hearing loss claim, the Board observes that he was afforded a VA examination in April 2008, following his initial January 2008 claim for service connection. According to the examination report, the Veteran reported exposure to gunfire noise while serving as a gunner during active service, but he did not have a hearing loss disability as defined by VA regulations. However, as noted above, the Veteran has stated that he has since "failed" a private audiological examination, which suggests that the Veteran might have a current hearing loss disability since reopening his claim for service connection. Additionally, the Veteran's service treatment records indicate a threshold shift during service, particularly when comparing audiometric findings in a February 1989 reference audiogram with those in the Veteran's December 1992 report of medical examination. Thus, the Board finds that a VA examination is warranted to determine the nature and etiology of the Veteran's claimed hearing loss disability. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McClendon, 20 Vet. App. at 86. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. In particular, attempt to obtain any private audiological test reports, in addition to any outstanding private treatment records from Sabates Eye Center dated after August 2007, the Truman Medical Center dated after October 2007, "KUMC," "Iowa Eye," "Retina Associates," and/or Dr. Rosenthal. Follow the procedures for obtaining the records as set forth in 38 C.F.R. § 3.159(c), and obtain new VA Form 21-4142 releases if necessary. If VA attempts to obtain any outstanding records that are unavailable, the Veteran and his representative should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Thereafter, afford the Veteran a VA examination with an appropriate medical examiner to determine the nature and etiology of his claimed vision loss disability. The claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. All tests and studies deemed necessary by the examiner should be performed, and all clinical findings should be reported in detail. After a review of the record and an examination and interview of the Veteran, the examiner should offer his or her opinion as to the following inquiries: (a) The examiner should identify, with specificity, all current diagnoses pertinent to the Veteran's claimed vision loss disability. In identifying all pertinent diagnoses, the examiner should consider private and VA treatment records pertaining to the Veteran's claimed vision loss disability, including the above-noted assessments and/or notations of right eye wet macular degeneration; history of left eye macular degeneration; new neovascularization with SRF in macula, right eye, etiology unclear; progressive vision loss of the left eye with neovascular formation changes; and ocular histoplasmosis. (b) Indicate whether any currently diagnosed eye disorder constitutes: (i) a congenital or developmental disease, (ii) a congenital or developmental defect, or (iii) an acquired disease or injury. For VA purposes, the term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs, and whose etiology, pathology, and prognosis may be known or unknown. See VAOPGCPREC 82-90. On the other hand, the term "defect" would be definable as structural or inherent abnormalities or conditions that are more or less stationary in nature. See id. (c) For any congenital or developmental defect that is identified, the examiner should opine as to whether the Veteran now has any additional disability due to an in-service disease or injury superimposed upon such congenital or developmental defect, to include as due to reported exposure to sand flies in the Persian Gulf. (d) For any congenital or developmental disease that is identified, the examiner should opine as to whether the disease clearly and unmistakably existed prior to service, and if so, whether it clearly and unmistakably underwent no permanent increase in severity as a result of active service, to include as due to reported exposure to sand flies in the Persian Gulf. (e) For each current diagnosis that is not a congenital or developmental defect, and/or did not preexist service, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the condition is caused by, or otherwise etiologically related to, the Veteran's active military service, to include reported exposure to sand flies in the Persian Gulf. In rendering the above opinions, the examiner should consider and discuss the Veteran's reported history and contentions, as well as any other pertinent medical nexus evidence of record. At a minimum, the examiner should discuss the Veteran's reported exposure to sand flies in the Persian Gulf. A complete rationale should be provided for any opinion expressed. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, he or she should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering the opinion being sought. 3. After completing the development requested in number (1), afford the Veteran a VA audiological examination with an appropriate medical examiner to determine the nature and etiology of his claimed bilateral hearing loss disability. The claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. All tests and studies deemed necessary by the examiner should be performed, including pure tone threshold and Maryland CNC testing, and all clinical findings should be reported in detail. After a review of the record and an examination and interview of the Veteran, the examiner should offer his or her opinion as to the following inquiries: (a) The examiner should indicate whether the Veteran has a current hearing loss disability. (b) If the examiner finds that the Veteran has a current hearing loss disability, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the hearing loss disability is caused by, or otherwise etiologically related to, the Veteran's active military service. In rendering such opinion, the examiner should address whether there was a significant threshold shift during either period of the Veteran's active service. A complete rationale should be provided for any opinion expressed. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, he or she should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering the opinion being sought. 4. After completing the above development and any other action deemed necessary, re-adjudicate the Veteran's claims. If any of the benefits sought are not granted in full, furnish the Veteran and his representative a Supplemental Statement of the Case after affording the requisite time period to respond. The matter(s) should then be returned to the Board for appropriate 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 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 LANE 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 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) (2015).