Citation Nr: 1751652 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-35 195 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for migraine headaches. 3. Entitlement to service connection for detached vitreous of the left eye. 4. Entitlement to service connection for dizziness and nausea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran had active military service from January 1968 to October 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2012 rating decision in which the RO denied the service connection claims on appeal. The Veteran filed a notice of disagreement (NOD) in August 2012, and the RO issued a statement of the case (SOC) in November 2013. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in December 2013. In December 2013, the Veteran appointed Disabled American Veterans as his current representative. In February 2017, the Veteran was afforded a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic, Veterans Benefits Management System and Virtual VA (Legacy Content Manager) claims processing systems. For reasons expressed below, the claims on appeal are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the electronic claims file reveals that additional development of these claims is warranted. Initially, the Board finds that a VA audiology medical opinion for the right ear hearing loss claim is needed. The July 2011 VA examiner provided a negative medical etiology opinion Her rationale was a clinical study weighing against delayed onset hearing loss from noise exposure. In December 2013, the Veteran submitted an internet article from Dangerous Decibels, a public health partnership for the prevention of noise induced hearing loss. It reported that for Veterans, noise induced hearing loss had a delayed onset and they were often unaware of the full extent of hearing damage from military noise exposure. This article contradicts the July 2011 VA medical opinion. Accordingly, another medical opinion is needed which takes into consideration to the aforementioned internet article suggesting that delayed onset noise-induced hearing loss is common among Veterans. Further, the Veteran has not been afforded VA examinations in connection with his claims for detached vitreous of the left eye, migraines, or dizziness and nausea. Pursuant to VA's duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) established that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service. See 38 U.S.C.A. § 5103A (West 2014)' 38 C.F.R. § 3.159 (2017). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) noted that the third prong of 38 C.F.R. § 3.159(c)(4), requiring that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the Veteran's military service, is a low threshold. McLendon, 20 Vet. App. at 83. The Board points out that the symptoms associated with these claimed disabilities are readily observable (or otherwise perceived through the senses), and that the evidence currently of record is limited. Service treatment records (STRs) include treatments for a bilateral ear infection and submaxillary swelling. The Veteran's reports about experiencing symptoms associated with the claimed disabilities from an in-service muzzle blast incident are not inherently implausible or otherwise contradicted by the record. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran in weighing evidence). As for the separation examination, the Board notes the Veteran's reports that he was instructed by medical officers to forge this document. A copy of the October 1970 separation examination is available. It is substantially completed and lists two medical corps officers as responsible for the examination. It does not indicate any gross irregularity. Given these facts, the Board finds the Veteran's forgery narrative concerning the separation examination to be less plausible. Id. However, to the extent the Veteran asserts that the separation examination was generally cursory or limited in detail, the Board will consider such an assertion as it is facially plausible that expediency in separation processing was a factor in its completion. Id. Given the above considerations about the circumstances of the Veteran's service and his current assertions about continuity of symptomatology, the Board finds that a VA examination is warranted to ascertain the nature and etiology of detached vitreous of the left eye, migraine headaches, and dizziness and nausea. See McLendon, 20 Vet. App. at 83. The Veteran is hereby advised that failure to report to any scheduled examination(s), without good cause, may result in denial of the claim(s). See 38 C.F.R. § 3.655 (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. While these matters are on remand, to ensure that all due process requirements are met, and the record is complete, the AOJ should also undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the most recent VA treatment records associated with the Veteran's claims file are from the VA Medical Center (VAMC) in Prescott, Arizona from February 23, 2014. On remand, the AOJ should obtain updated records of any relevant VA treatment of the Veteran. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2017); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2014); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). The AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) medical records). Notably, review of the 2012 to 2014 VA treatment records indicates that the Veteran receives the majority of his medical care through private providers, namely Drs. T and W. They also reference Eyes of Arizona as a private eye care provider. In November 2011, the Veteran submitted several private medical record releases via VA Forms 21-4142, Authorization and Consent to Release Information to VA. On one form, he identified Dr. T as providing annual physicals, as well as headache and depression treatment from 2005 to 2011. Then, in a July 2012 statement, the Veteran requested that the RO disregard the November 2011 private medical record releases as they were not relevant to his bilateral hearing loss and tinnitus claims. The RO did not request any of the private medical records identified in the November 2011 releases prior to adjudicating the claims. As such, in its letter, the AOJ should specifically request that the AOJ furnish updated authorization to obtain records from Drs. T and W and the Eyes of Arizona medical facility. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Prescott VAMC (and any associated facility(ies)) all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, dated since February 23, 2014. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate, current authorization to obtain outstanding, pertinent private (non-VA) records from Drs. T and W and Eyes of Arizona from the initial dates of treatment, as well as from any other provider. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159 (2017). All records and responses received should be associated with the file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain from an appropriate audiologist an addendum opinion addressing the etiology of right ear hearing loss. Only arrange for the Veteran to undergo further VA examination if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should reflect consideration of the Veteran's documented history and assertions. Based on a review of the record, the audiologist should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that right ear hearing loss had its onset in, or is otherwise medically-related to the Veteran's military service -to pecifically include noise exposure and/or the September 1969 ear infection. In addressing the above, the audiologist must consider and discuss all relevant medical and other objective evidence of record, to particularly include the December 2013 internet article indicating that military noise exposures can cause hearing loss with a gradual onset. The audiologist must also consider and discuss all lay assertions, to include the Veteran's assertions as to in-service events, and as to the nature, onset and continuity of symptoms. Notably, the absence of documented evidence of treatment for a specific disability in service should not, alone, serve as the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, and that his assertions in this regard must be considered in formulating each requested opinion. If lay assertions in any regard discounted, the examiner should clearly so state, and explain why. Complete, clearly-stated rationale for the conclusions reached, must be provided. 5. After all available records and/or responses from each contacted entity are associated with the claims file, arrange for the Veteran to undergo VA neurology examination, by an appropriate physician, for claimed migraine headaches and dizziness. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran's documented history and lay assertions. The examiner must conduct a clinical examination. All necessary tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his/her report), and all clinical findings should be reported in detail. Based on a review of the examination results and the evidence of record, with respect to diagnosed migraine headaches and dizziness, for each, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during, or is otherwise medically-related to the Veteran's military service, to specifically include the muzzle blast incident as described by the Veteran and/or the September 1969 ear infection. In addressing the above, the examiner must consider and discuss all relevant medical and other objective evidence of record, as well as all lay assertions, to include the Veteran's assertions as to in-service events, and as to the nature, onset and continuity of symptoms. Notably, the absence of documented evidence of treatment for a specific disability in service should not, alone, serve as the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, and that his assertions in this regard must be considered in formulating each requested opinion(s). If lay assertions in any regard discounted, the examiner should clearly so state, and explain why. Complete, clearly-stated rationale for the conclusions reached, must be provided. 6. After all available records and/or responses from each contacted entity are associated with the claims file, arrange for the Veteran to undergo VA ophthalmology examination, by an appropriate physician, for claimed detached vitreous of the left eye. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated individual, and the /examination report should include discussion of the Veteran's documented history and lay assertions. The examiner must conduct a clinical examination. All necessary tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his/her report), and all clinical findings should be reported in detail. Then, for left eye detached vitreous and each other diagnosed left eye disorder, the examiner should render an opinion, consistent with sound medical judgment, whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in, or is otherwise medically-related to, the Veteran's military service, to specifically include the muzzle blast incident as described by the Veteran. In addressing the above, the examiner must consider and discuss all relevant medical and other objective evidence of record. The examiner must all consider and discuss all lay assertions, to include the Veteran's assertions as to in-service events, his reports of medical treatment in 1971 and 1992 for detached vitreous of the left eye, and as to the nature, onset and continuity of symptoms. Notably, the absence of documented evidence of treatment for a specific disability in service should not, alone, serve as the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, and that his assertions in this regard must be considered in formulating each requested opinion(s). If lay assertions in any regard discounted, the examiner should clearly so state, and explain why. Complete, clearly-stated rationale for the conclusions reached must be provided. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development action deemed warranted, adjudicate the claims on appeal in light of all pertinent evidence (to include all that added to the electronic claims file since the last adjudication) and legal authority. 9. If any benefit(s) sought on appeal remain(s) denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).