Citation Nr: 21075691 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-42 633 DATE: December 21, 2021 REMANDED Entitlement to an increased rating for service-connected bilateral hearing loss is remanded. Entitlement to service connection for vision problems is remanded. Entitlement to service connection for a seizure condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1969 to September 1973. By way of history, the RO initially denied service connection for seizures in an April 2012 rating decision. In February 2013, within one year of the April 2012 rating decision, the Veteran submitted medical literature relevant to his claim for service connections for seizures. Then, in September 2013, the Veteran submitted a petition to reopen his claim for service connection for seizures. In November 2013, the RO again denied the claim. In November 2013, the Veteran also submitted a request for reconsideration of the November 2013 rating decision. The Veteran's claim was again denied in July 2014, and he submitted a timely notice of disagreement in July 2015. Since the Veteran submitted new and material evidence within one year of the April 2012 rating decision, the rating decision did not become final and as such, the Board finds that this is an original claim for service connection. 38 C.F.R. § 3.156(b). As a preliminary matter, the Board notes that there are outstanding June 2013 and July 2016 motions to advance the case on the docket (AOD) based on both financial hardship and the Veteran's age. Appeals must be considered in docket number order, but may be advanced if sufficient cause is shown. See 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). Sufficient cause includes advanced age (defined as 75 years or more), serious illness, severe financial hardship, or administrative error resulting in a significant delay. While the June 2013 motion cited financial hardship, there was no documentation associated with the motion. Accordingly, there is insufficient evidence to demonstrate financial hardship. Likewise, while the July 2016 motion was based on the Veteran's age, the evidence of record indicates that the Veteran is now 71 years old. Accordingly, the Veteran's AOD motions must be denied at this time. See id. However, the Board notes that this determination does not prevent the Veteran from filing another AOD motion, and submitting relevant supporting evidence, at a later date. 1. Entitlement to an increased rating for service-connected bilateral hearing loss is remanded. In the Veteran's July 2014 Notice of Disagreement and November 2021 appellate brief, the Veteran stated that his bilateral hearing loss has worsened since his last VA examination. His most recent examination was in 2014. Accordingly, a contemporaneous examination to ascertain the current severity of his hearing loss is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 2. Entitlement to service connection for vision problems is remanded. The Veteran appeals the denial of service connection for vision problems. He contends that during service his eye "deteriorations are too severe to be considered natural progression in a 4 year period, and he was provided specially crafted eyeglasses several times during service." See July 2016 Statement in Support of Claim. The Veteran has not received an examination regarding his vision disability. His VA clinic records indicate that he has diagnoses of blurry vision, dry eyes, refractive error with prism, and cataracts. It should be noted that the Board cannot make medical determinations as to whether any vision diagnoses are deemed congenital or developmental defects. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, the Veteran should be afforded a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for a seizure condition is remanded. The Veteran was scheduled for a VA examination in August 2016 for his seizure disability. In a September 2016 Statement in Support of Claim, the Veteran requested that his examination be rescheduled as he underwent full knee replacement surgery and relocated to New Jersey. To date, the Veteran has not received a VA examination for his seizure condition. Therefore, the Veteran should receive a VA examination. See McLendon, 20 Vet. App. at 79. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records and associate them with the claims file. 2. Thereafter, schedule the Veteran for an examination to assess the current severity of his bilateral hearing loss disability. All necessary studies and tests should be conducted. 3. Schedule the Veteran for an examination for any diagnosed eye/vision disorder(s). For each diagnosis identified, the examiner should indicate whether or not the disorder is a congenital defect or disease. To assist the examiner, for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. (As an example, sickle cell anemia is considered a congenital "disease" for VA purposes, whereas refractive error is considered a congenital "defect.") The examiner must opine to the following: a) For each current eye/vision disorder that is a congenital defect, the examiner should state whether there is any evidence of superimposed disease or injury during the Veteran's active duty service. b) For each current eye/vision disorder that is a congenital disease or not a congenital defect, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran's active duty service. If so, the examiner should state whether there was an increase in the severity of the disorder during the Veteran's active duty service. If the evidence reflects an increase, the examiner should indicate whether the increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. c) If the examiner determines that the eye/vision disorder(s) is not a congenital defect or disease, he or she should state whether it is at least as likely as not (50 percent or greater probability) that the disorder(s) had its onset in service or is etiologically related to service. In doing so, the examiner should consider the following: June 1969, September 1969, November 1971, September 1972, August 1973, and September 1973 eye examinations; October 1970 and October 1972 eyewear prescription; April 2013 VA treatment record, reporting "c/o decreased visual acuity in the right eye and states the right eye waters frequently;" May 2013 VA treatment record, reporting "c/o "flash" in the upper corner of the R eye that started about 4 months ago;" January 2014 VA treatment record, noting "sudden loss of vision/appearance of cloudy veil in front of eye;" July 2013 treatment record, diagnosing the Veteran with refractive error with prism, cataract, and "operculated retinal hole os;" July 2016 Statement in Support of Claim; and September 2016 VA treatment record, diagnosing the Veteran with dry eyes. 4. Schedule the Veteran for an examination for his seizure condition. The examiner should opine whether it is at least as likely as not the Veteran's seizure disability had its onset in service or is etiologically related to service. The examiner is requested to discuss whether there is any medical reason to accept or reject the Veteran's belief that the use of silver aluminum oxide paint during service resulted in his diagnosis of seizures. In doing so, the examiner should consider the following: March 1969 entrance examination; November 1971 dental health questionnaire, marking "yes" for convulsions and listing "convulsions" under recent illnesses; September 1973 separation examination; January 2011 Statements in Support of Claim; July 2016 Correspondence from the Veteran, submitting a medical article titled, "Temporal Epileptic Seizures and Exposure to Solvents;" and September 2017 VA clinic record, noting that the Veteran "has been having seizures since 1971, but it was only in 1995 when he had a MVA was he worked up for seizures and given the diagnosis of epilepsy." The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. 5. Thereafter, readjudicate the Veteran's claims. If any of the benefits sought on appeal are denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. A. MARSH II Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.