Citation Nr: 20003374 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 15-04 027 DATE: January 14, 2020 REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. The issue of entitlement to service connection for tinnitus is remanded. The issue of entitlement to service connection for a left shoulder disability is remanded. The issue of entitlement to service connection for a right shoulder disability is remanded. The issue of entitlement to service connection for a low back disorder is remanded. The issue of entitlement to service connection for a disorder manifested by multiple joint pain is remanded. The issue of entitlement to service connection for an eye disorder, claimed as lack of depth perception, is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Air Force from February 1972 to February 1976. His military occupational specialty (MOS) was munitions maintenance specialist, being the civilian equivalent of explosive operator. He had one year and three months of foreign or sea service. His military decorations included the National Defense Service Medal. He was not given any awards or decorations indicative of combat service. A March 1995 correction to his DD 214 reflects that he was awarded the Vietnam Service Medal. Historically, the Veteran did not perfect an appeal from a June 1989 rating decision which denied service connection for bilateral carpal tunnel syndrome (as being unrelated to a inservice excision of a left wrist ganglion cyst), a skin condition, and hepatitis but granted service connection for residuals of excision of a ganglion cyst of the left wrist, which was assigned an initial noncompensable disability rating. The Veteran testified in support of his claims before the undersigned Veterans Law Judge (VLJ) at a July 2015 Board Hearing, and a copy of the transcript is on file. An August 2018 Board decision denied service connection for seven (7) claimed disabilities, which were: bilateral hearing loss; tinnitus; a left shoulder disability; a right shoulder disability; a low back disorder; a disorder manifested by multiple joint pain; and an eye disorder, claimed as lack of depth perception. Claims for service connection for diabetes mellitus, type II, to include as due to herbicide exposure in Thailand; service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD); service connection for residuals of a head injury, to include traumatic brain injury (TBI); and service connection for a disorder manifested by vertigo were remanded. The Veteran appealed the Board’s denial of service connection for all seven of the claimed disabilities to the United States Court of Appeals for Veterans Claims (Court). The Court entered an Order in July 2019 which vacated the Board’s denials of all seven claims, pursuant to a June 2019 Joint Motion for Partial Remand (JMR). This appeal was processed using the Veteran's Benefits Management System (VBMS) and, in addition there is a Virtual VA paperless claims electronic file (now described as Legacy Content Manager Documents). Accordingly, any future consideration of this appeal should take into consideration the existence of these electronic records. JMR In the JMR it was concluded that there was error in the August 2018 Board decision in (1) failing to obtain identified outstanding VA outpatient treatment (VAOPT) records; (2) failing to address and develop an alternative theory of service connection for tinnitus (other than inservice exposure to acoustic trauma), to include obtaining an adequate medical opinion; and (3) failing to provide a VA examination and an adequate statement of reasons or bases in denying the eye disorder claim. VAOPTs The JMR stated that the February 2014 rating decision which was appealed and a November 2014 Statement of the Case (SOC) cited to VAOPTs from September 12, 1995, through 2014, but that the Board had not referenced or indicate it reviewed such VAOPTs, although the Board had cited to VAOPTs from 1988 to 1990. As to this, the SOC stated, at page 16, that the VAOPTs through November 25, 2014, from the White River Junction VAMC had been reviewed. The parties to the JMR agreed “that the [VAOPT] records [from September 12, 1995, through 2014] are not in the record reviewed.” Thus, the record before the Board had been incomplete, citing to Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (holding that 38 C.F.R. § 3.159(c)(3), “extends the VA's duty to assist to obtaining sufficiently identified VA medical records or records of examination or treatment at non-VA facilities authorized by VA, regardless of their relevance.”). Accordingly, the JMR instructed that “the Board must obtain any and all outstanding VA treatment records, to include from 1995 to 2014.” However, the JMR also stated that the parties noted that “that the record references the possibility of outstanding VA treatment records from 1980, 1984, and May 1993, all of which are also not of record.” This included the Veterans Board videoconference testimony of having “first sought treatment for shoulder pain in ‘about 1980’ at White River Junction VAMC [VA Medical Center]” and, as contained in the record, an “October 1984 VA Form 10-7131) [as to] (May 12, 1993, hospitalization admission report to ‘R/O [rule out] MI myocardial infarction]’.” However, the Board notes that at the videoconference the Veteran also reported having been treated for PTSD at the “South Marlton” [phonetic spelling} Veterans Center in the early 1980s. The JMR instructed that “the Board is further directed to ensure that the claims file is complete.” In this regard, the Board notes that since the JMR, the Veteran's Benefits Management System (VBMS) shows that on April 23, 2019, VAOPT records from White River Junction VAMC from September 29, 1995, through April 18, 2019, have been placed in the appellate record. On October 11, 2019, VAOPT records from White River Junction from April 25, 2019 to October 11, 2019 were placed in the appellate record. Tinnitus The JMR stated that the Board’s denial of service connection of tinnitus was because of “primarily relying on a February 2014 VA audiological examination finding Appellant’s in-service acoustic trauma did not cause his current tinnitus.” However, the Board erred in not adjudicating whether tinnitus was due to “an in-service head injury near his left ear with subsequent complaints of dizziness and blurred vision.” Particularly so because in a February 2013 Statement in Support of Claim, he had stated he “always felt that the fall in Thailand …caused the ringing in my left ear….” Thus, upon remand, the Board was to “address and properly develop this reasonably raised theory of entitlement for service connection for tinnitus, to include obtaining a new VA examination/medical opinion addressing it.” Eye Disorder On examination for service entrance in September 1971 it was noted that the Veteran had esotropia and strabismus. The summary of defects reported "alt" strabismus with heterophoria. In an adjunct medical history questionnaire it was reported that the Veteran wore glasses, and he reported having been told in the past that he had heterophoria. In December 1973 the Veteran was seen at an optometry clinic. It was noted that he wore glasses, and he complained of his eyes being sore and having headaches. In August 1974 he was issued prescription lenses due to esotropia and hyperopia. The Veteran has submitted a January 1975 letter from a military optometrist of the Griffis Hospital U.S. Air Force Base which states that the Veteran was seen and found to have normal acuity in both eyes. However, he did have an alternating esotropia which prevented binocular vision. He would therefore be unable to pass standard depth perception tests. This condition was permanent but not progressive and would not prevent him from safely operating a motor vehicle. The service separation examination noted that the Veteran wore glasses for defective visual acuity and being cross-eyed for the last 2 ½ years. The JMR stated, at page 5, that: Appellant asserts that the in-service head injury caused a loss of depth perception. [R. at 263-64] (Appellant’s February 2013 claim). His service treatment records confirm treatment in January 1973 after falling off a trailer and bumping the left side of his head. [R. at 315]. At that time, he complained of dizziness and blurred vision in his left eye. Id. In-service records also show normal (20/20) acuity, but with “alternating esotropia, which prevents binocular vision.” See, e.g., [R. at 208] (January 1975 USAF Hospital Griffis Memorandum). The JMR further stated that “[t]he Board, in denying the claim, found Appellant’s eye disorders, which included esotropia, strabismus, and heterophoria, were all ‘refractive errors’ and, therefore, congenital defects that cannot be service-connected as a matter of law.” Citing to VA Office of General Counsel Precedential Opinions (VAOPGCPRECs) 82-90 and 67-90, the JMR noted that “[c]ongenital ‘defects,’ however, can be subject to a superimposed disease or injury incurred during military service and service connection may be warranted for the resultant disability.” In other words, service connection would be warranted on the basis of any aggravation of a pre-existing congenital disability due to inservice disease or injury. The JMR further stated that the Board decision “lacks an adequate statement of reasons or bases and is a medical determination in violation of Colvin v. Derwinski. [sic] 1 Vet. App. 171 (1991) [and] the Board made blanket medical determinations with regard to the nature of Appellant’s eye disorders and whether they could be service-connected.” Specifically, “no medical opinion was provided to ascertain whether Appellant’s current eye disorders are congenital defects or diseases, and whether any such found congenital defect or disease could be subject to service connection in light of the in-service head injury.” JMR at page 6. Thus, the Board was “to obtain a VA medical opinion/examination to ascertain the nature of Appellant’s current eye disorder(s), whether any found congenital eye ‘defect’ was subject to inservice superimposed disease or injury (such as the in-service head injury) resulting in an additional disability, and whether any found congenital eye ‘disease’ was aggravated by the in-service head injury or any other incident of Appellant’s military service.” JMR at pages 6 and 7. Previously Remanded Claims Pursuant to the August 2018 Board remand the RO, by letter dated April 23, 2019, requested that the Veteran provide as much information as possible as to the dates and places of evaluation or treatment, private and VA, as to diabetes, any psychiatric disorder, head injury residuals including TBI, and vertigo. It was requested that he list, to the extent possible, the inclusive dates of treatment for each claimed disability at specific medical facilities and if any were private medical providers, he was requested to execute the enclosed releases. However, the Veteran has not done so. In this regard, the Board notes that the VA’s duty to assist is not a one-way street. When requested to cooperate, the Veteran is obligated to do so. See Tyrues v. Shinseki, 23 Vet. App. 166, 181 (2009); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In August 2018 Board remanded claims for service connection for diabetes mellitus, type II, to include as due to herbicide exposure in Thailand; service connection for an acquired psychiatric disorder, to include PTSD; service connection for residuals of a head injury, to include TBI; and service connection for a disorder manifested by vertigo. Diabetes Mellitus, Type II At the Board videoconference the Veteran conceded that he had not been in Vietnam but his testimony and the maps submitted at the videoconference are to the effect that he was exposed to herbicides because he routinely passed through the perimeter of the Korat Royal Thailand Air Force Base. In 2018 the Board did not adjudicate the claim for service connection for diabetes mellitus, type II, because although the Veteran had testified that he was receiving VA treatment for diabetes mellitus, type II, there were no actual medical records on file which reflected that he had been diagnosed as having diabetes mellitus, type II. However, VAOPT records entered into VBMS on October 11, 2019, include an October 10, 2019 entry that the Veteran’s medications included insulin. An Acquired Psychiatric Disorder, Including PTSD The Board remand in 2018 requested that the Veteran be afforded a VA psychiatric examination to determine if he had a psychiatric disorder, including PTSD, which was related to military service. The Veteran was afforded a VA psychiatric examination on September 19, 2019. Based upon that examination an opinion was rendered that the Veteran had a diagnosis of PTSD which was at least as likely as not incurred in or caused by traumatic stressors during service. Head Injury Residuals, Including TBI The Board remand in 2018 requested that the Veteran be afforded a VA examination to determine if he had residuals of a TBI. He was afforded such an examination on September 14, 2019. Based upon that examination an opinion was rendered that the Veteran did not have any residuals of an inservice head injury. A Disorder Manifested by Vertigo The Board remand in 2018 requested that the Veteran be afforded a VA examination to determine if he had vertigo as a residual of a TBI. He was afforded such an examination on September 23, 2019. Based upon that examination an opinion was rendered that the Veteran did not have vertigo due to an inservice head injury. However, since the development requested in the August 2018 Board remand, the RO has not readjudicated the claims for service connection for diabetes mellitus, type II, to include as due to herbicide exposure in Thailand; an acquired psychiatric disorder, to include PTSD; residuals of a head injury, to include TBI; and a disorder manifested by vertigo. This may be done by the issuance of a Supplemental Statement of the Case (SSOC). The matters are REMANDED for the following action: 1. The RO should contact the Veteran and request that he provide information as to the places and inclusive dates of all VA outpatient treatment since discharge from military service. Then, the RO should take the appropriate steps to ensure that all VAOPT records from the sources cited by the Veteran are obtained and associated with the appellate record. In particular, the RO should take the appropriate steps to ensure that all VAOPT records from the White River Junction VAMC since 1980 through September 12, 1995, are obtained and associated with the appellate record. Also ensure that all VAOPT records from the “South Marlton” [phonetic spelling] Veterans Center in the early 1980s are obtained and associated with the appellate record. Also ensure that all records relative to any VA hospitalization in May 1993, to ‘R/O [rule out] MI myocardial infarction]’ are obtained and associated with the appellate record. 2. Afford the Veteran a VA examination for the purpose of obtaining a VA medical opinion to ascertain the nature of any tinnitus which he now has. Specifically, an opinion should be rendered as to whether the Veteran has tinnitus and, if so, whether it is at least as likely as not (a 50 percent or greater probability) that such disorder is of service origin, and specifically whether it is as likely as not proximately due to or the result of any inservice head injury. The examiner is requested to address the Veteran’s reported history, related in a February 2013, Statement in Support of Claim, that he had “always felt that the fall in Thailand [had] caused the ringing in my left ear.” The VA electronic records should be made available for review in connection with this examination. The examiner should provide a complete rationale for all conclusions reached. If the examiner feels that any requested opinion cannot be rendered without resorting to speculation, the examiner should state why this is so. Specifically, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given current medical science and the known facts), by a deficiency in the record (i.e., additional facts are required), or because the examiner does not have the needed knowledge, expertise or training. 3. Afford the Veteran a VA examination of his eyes for the purpose of obtaining a VA medical opinion to ascertain the nature of all current eye disorder(s) he now has. An opinion should be rendered as to whether the Veteran has any acquired disorder of either eye which was incurred in or is otherwise of service origin. In this regard, the examiner is specifically requested to address esotropia, strabismus, heterophoria and any other congenital or developmental disorder of the eyes which the Veteran may now have. An opinion should also be rendered as to whether any found developmental or congenital eye ‘defect’ was subject to inservice superimposed disease or injury (such as the Veteran’s in-service head injury) resulting in an additional disability, and whether any found congenital eye ‘disease’ was aggravated by the in-service head injury or any other incident of Appellant’s military service. The VA electronic records should be made available for review in connection with this examination. The examiner should provide a complete rationale for all conclusions reached. If the examiner feels that any requested opinion cannot be rendered without resorting to speculation, the examiner should state why this is so. Specifically, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given current medical science and the known facts), by a deficiency in the record (i.e., additional facts are required), or because the examiner does not have the needed knowledge, expertise or training. 4. Thereafter, the RO should readjudicate all seven (7) claims for service connection in light of the additional evidence. Then, a Supplemental Statement of the Case (SSOC) should be issued as to each such claim which remains denied. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.