Citation Nr: 1803259 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-12 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for vision problems to include bilateral dry eyes, bilateral cataracts, and refractive error and presbyopia, to include as due to exposure to herbicide agents. 2. Entitlement to service connection for gum disease with loss of teeth. 3. Entitlement to service connection for skin rashes, to include as due to exposure to herbicide agents. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD). 5. Entitlement to service connection for left shoulder osteoarthritis. 6. Entitlement to service connection for a right shoulder disability. 7. Entitlement to service connection for sleep apnea, to include as due to exposure to herbicide agents. 8. Entitlement to service connection for hypertension to include as secondary to type 2 diabetes mellitus and/or sleep apnea. 9. Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to December 1970, and served in Vietnam (from December 1969 to December 1970). This matter is before the Board of Veterans'Appeals (Board) on appeal from August 2011 and November 2011 rating decisions by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board, but then withdrew the request (by letter in October 2015) before the hearing was scheduled. In his October 2010 application for compensation the Veteran listed "vision problems". The AOJ characterized his claim as seeking service connection for bilateral dry eyes, bilateral cataracts, and refractive error and presbyopia (the diagnoses noted on March 2011 VA examination). In an April 2015 written statement the Veteran withdrew the claim of service connection for bilateral dry eyes. [The issues of service connection for bilateral cataracts and refractive error and presbyopia remain on appeal, and are addressed in the Remand below]. The issues of service connection for bilateral cataracts, refractive error and presbyopia, PTSD, hypertension, left and right shoulder disabilities, and sleep apnea and seeking a compensable rating for bilateral hearing loss are being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action is required. FINDING OF FACT In a written statement received in April 2015, prior to the promulgation of a Board decision in the matter, the Veteran requested withdrawal of his appeals seeking service connection for bilateral dry eyes, gum disease, and skin rashes. CONCLUSION OF LAW The criteria for withdrawal of an appeal are met with respect to the claims seeking service connection for bilateral dry eyes, gum disease, and skin rashes; the Board has no further jurisdiction to consider appeals in these matters. 38 U.S.C. §§ 7104, 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Withdrawal of Appeal Inasmuch as the Veteran has expressed intent to withdraw his appeals seeking service connection for bilateral dry eyes, gum disease, and skin rashes, there is no reason to belabor the impact of the VCAA on the matter, as any notice or duty to assist omission is harmless. The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511 (a) is subject to a decision by the Secretary. 38 U.S.C. § 7104. 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. § 7105. An appeal may be withdrawn by the appellant or by his or her authorized representative, in writing or on the record at a hearing, at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204. In a written statement received in April 2015, the Veteran requested withdrawal of his appeals seeking service connection for bilateral dry eyes, gum disease, and skin rashes. A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204(b)(3). As the Veteran has withdrawn his appeal in these matters, the Board does not have jurisdiction to further consider an appeal in the matters. ORDER The appeals seeking service connection for bilateral dry eyes, gum disease and rashes are dismissed. REMAND The Veteran contends that he has bilateral cataracts, refractive error and presbyopia which were incurred in service. He alleges that he sustained eye trauma from exposure to herbicide agents in service. On March 2011 VA eye examination, the diagnoses included bilateral cataracts and refractive error and presbyopia. The provider did not offer an opinion addressing the medical questions raised, i.e., regarding the pathology underlying the current visual impairment, and it's etiology (to include whether the condition is developmental, and not compensable, or acquired (and possibly related or trauma or environmental exposures in service). Accordingly, a VA examination to secure an adequate medical opinion is necessary. On March 2011 VA PTSD examination, the examiner opined that there was no Axis I diagnosis of PTSD. The VA examiner "conceded" a stressor event in service. Notably, whether or not a stressor event in service occurred is a threshold adjudicatory determination. Here, the RO had made no attempt to verify an alleged stressor event in service. In a June 2011 statement, the Veteran reported that he witnessed 2 fellow soldiers die in a mortar attack on Christmas day in 1969 (an event of a nature eminently verifiable). A September 2011 VA treatment record notes a positive screening for PTSD. July to September 2015 private treatment records note a diagnosis of PTSD. And in his notice of disagreement (NOD) and other statements the Veteran reported that he also received a clinical diagnosis of PTSD at the Marianna, Florida VAMC. If the alleged stressor is verified, the record would require another examination to assess whether or not the Veteran has PTSD related to that stressor. Any existing VA records not associated with the Veteran's record but showing a diagnosis of, or treatment for PTSD, are pertinent evidence constructively of record, and must be sought. The Veteran asserts that he has left and right shoulder disabilities related to his activities in service. He alleges that repetitive action trauma (from lifting artillery rounds in service) caused his current shoulder disabilities. A review of the record found a diagnosis of left shoulder osteoarthritis (but no diagnosis of a right shoulder disability). However, as some VA treatment records appear to be outstanding (and are sought), if such records show a diagnosis of a right shoulder disability, further development (including an examination to determine if such is related to service) may be necessary. See McClendon v. Nicholson, 20 Vet. App. 27 (2006). A July 2012 VA sleep study found obstructive sleep apnea syndrome, and a CPAP machine was prescribed. The Veteran reported having difficulty sleeping since service. A Decision Review Officer determined that the Veteran did not have a diagnosis of sleep apnea. Furthermore, there is no medical opinion in the record that explains why the problems the Veteran had sleeping in service were not early manifestations of the sleep apnea that was diagnosed in July 2012. An examination to determine the likely etiology of the Veteran's sleep apnea is necessary. The Veteran alternatively contends that his hypertension is related to (was caused or aggravated by) his sleep apnea; his claim of service connection for hypertension is therefore inextricably intertwined with the claim of service connection for sleep apnea and consideration of the claim must be deferred, pending the resolution of the sleep apnea claim. The Veteran was last afforded a VA examination to assess his bilateral hearing loss disability in March 2011. In a February 2014 statement, he indicated that his hearing acuity has worsened. In light of the length of intervening period since he was last examined (more than 6 years) and the allegation of worsening, a contemporaneous examination to assess the disability is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran's April 2015 statement seeking individual unemployability raised anew the matter of entitlement to a TDIU rating (which was denied by an unappealed August 2011 rating decision). It does not appear that the AOJ has considered the April 2015 recent submission. The Veteran has asserted (in his NOD and other statements) that he received treatment for the disabilities remaining on appeal at Lake City VAMC, Marianna VAMC and Gainesville VAMC (he also receives ongoing VA treatment). Only partial (from September 2011 to September 2013) VA treatment records are in his record. Updated records of his VA treatment may contain pertinent information, are constructively of record, and must be secured. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record the complete clinical records (any not already associated with the claims file) of all VA evaluations or treatment the Veteran has received for vision problems, PTSD, left and right shoulder disabilities, sleep apnea, hypertension and hearing loss. The AOJ should also ask him to identify, and provide releases for VA to obtain records of, any private providers of evaluations or treatment he received for such disabilities. The AOJ should secure complete records of the evaluations and treatment from all providers identified. If any such records are unavailable, the Veteran should be so notified. If he authorizes release of records, but the provider in question does not respond to AOJ's request, he should be advised that ultimately it is his responsibility to ensure private records are received. 2. The AOJ should also arrange for the Veteran to be examined by an ophthalmologist to ascertain the nature and likely etiology of his eye disabilities. The Veteran's entire record, to include this remand, must be reviewed by the examiner in conjunction with the examination. Following examination of the Veteran and review of his record, the examiner should provide opinions that respond to the following: (a) Please identify all eye pathology/impairment found, explaining (regarding each finding) whether it is a normal variant or reflects an abnormality (if so identify it by diagnosis), and indicate whether it is an acquired disability or developmental in nature. (b) Please identify the likely etiology for any acquired (compensable) eye disability found, specifically indicating whether it at least as likely as not (a 50% or greater probability) that such is due to an injury in service, became manifest in service, or is otherwise shown to have been incurred therein, to include as due to exposure to Agent Orange/herbicide agents therein? The examiner must explain the rationale for all opinions, citing to supporting factual data. 3. The AOJ should ask the Veteran to identify each of his alleged stressor events in service by unit (in which he was serving at the time), location, date, and nature of event (and any other persons involved). Thereafter the AOJ should arrange for verification of the alleged stressor events (specifically including the reported mortar attack on Christmas day 1969 when he was serving with the 173d Airborne Brigade, Battery D, 319th Artillery in Vietnam), and make a formal determination for the record as to whether there is credible supporting evidence of an alleged stressor event in service. The AOJ should also make a further formal finding for the record regarding whether the Veteran served in circumstances consistent with a fear of hostile military or terrorist activity. 4. The AOJ should then arrange for the Veteran to be examined by an appropriate VA psychiatrist or psychologist to determine the nature and etiology of his psychiatric disability, and specifically whether or not he has PTSD related to a corroborated stressor event in service or based on a fear of hostile military or terrorist activity in service. [The examiner must be advised of the AOJ's findings regarding whether there is corroborating evidence of a stressor event in service, and whether the Veteran served in circumstances consistent with a fear of hostile military or terrorist activity]. The entire record must be reviewed by the examiner in conjunction with the examination (to include the March 2011 VA PTSD examination report, the September 2011 positive PTSD screen, and any records from the Marianna VAMC received in response to the request above). Following examination of the Veteran and review of his record, the examiner must provide opinions that respond to the following: (a) Please identify by diagnosis each psychiatric disability entity found. Specifically, is it at least as likely as not (a 50 % or better probability) the Veteran has PTSD related to a corroborated stressor event in service (or based on a fear of hostile/terrorist activity if the circumstances of his service are determined by the AOJ to be consistent with such fear)? (b) If PTSD is not diagnosed, please explain why the Veteran does not meet the criteria for such diagnosis. The examiner must explain the rationale for all opinions. 5. The AOJ should also arrange for the Veteran to be examined by an orthopedist to ascertain the nature and likely etiology of his current left shoulder disability (and any right shoulder disability shown by the record). Based on review of the entire record (to include this remand and any records received pursuant to the development ordered above) and examination and interview of the Veteran, the consulting examiner must provide opinions that respond to the following: (a) Please identify (by diagnosis) each left shoulder disability entity found. (b) Please identify the likely etiology for each left shoulder disability entity diagnosed. Is it at least as likely as not (a 50% or better probability) that such disability/ies was/were incurred during the Veteran's active service? The rationale should acknowledge/reflect consideration of the Veteran's reports of lifting heavy artillery shells . (c) If additional postservice treatment records received show or suggest a diagnosis of a current right shoulder disability, the consulting orthopedist should identify (by diagnosis) each right shoulder disability entity found on examination or shown in the record. (d) The examiner should also identify the likely etiology for each right shoulder disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that such disability/ies was/were incurred during the Veteran's active service? The rationale should acknowledge/reflect consideration of the Veteran's reports of lifting heavy artillery shells in service. The examiner should explain the rationale for all opinions, citing to supporting factual data, as deemed appropriate. 6. The AOJ should also arrange for the Veteran to be examined by a sleep specialist to determine the nature and likely etiology of his sleep apnea. The Veteran's record must be reviewed by the examiner in conjunction with the examination. Based on examination and interview of the Veteran and review of his record, the examiner should provide an opinion that responds to the following: (a) Please identify the likely etiology for the Veteran's sleep apnea (diagnosed by sleep study in July 2012). Specifically, is it at least as likely as not (a 50 percent or better probability) that it is related directly to his service (due to disease, injury, or event, or had its onset, therein)? (b) If the sleep apnea is found to be unrelated to the Veteran's service, please identify the etiology for the sleep apnea considered more likely. The examiner should include rationale with all opinions. 7. The AOJ should also arrange for a VA audiological examination of the Veteran (with audiometric studies) to ascertain the current severity of his bilateral hearing loss. The Veteran's record must be reviewed by the examiner in conjunction with the examination. In addition to reporting audiometry findings, the examiner should elicit from the Veteran an account of the impact his hearing loss has on daily activity functioning, and should comment regarding whether the account is consistent with the findings on audiometry, as well as on the impact the level of hearing impairment shown by audiometry would be expected to have on occupational functioning. The examiner must include rationale with all opinions. 8. The AOJ should then review the record, arrange for any further development indicated (suggested by the results of the development sought above) and readjudicate the claims (to encompass TDIU raised in the context of the claim for increase). If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs