Citation Nr: 21026500 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 19-07 194 DATE: May 3, 2021 REMANDED Entitlement to service connection for a bilateral eye disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. REASONS FOR REMAND The Veteran had active duty for training from February 1960 to August 1960 and on active duty from October 1961 to August 1962. The current appeal before the Board of Veterans' Appeals (Board) arose from an April 2017 rating action in which a Department of Veterans Affairs (VA) Regional Office (RO) inter alia, denied entitlement to service connection for bilateral eye, hearing loss, and eye disabilities. In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Service Connection for Bilateral Eye Disability The Veteran testified during his March 2021 Board hearing that he sustained an eye injury as a result of an incident during service where he was hit with a softball. He reported suffering two black eyes immediately after the incident. Review of his service treatment records (STRs) reveals that, in October 1961, he had sustained a contusion to the right temporal area. The report noted continued conjunctival hemorrhaging as well as blurred vision in the right eye. A September 2020 report of a private optometrist evaluation noted that the Veteran reported having a long-standing loss of vision to his left eye. The Veteran reported that he progressively began losing his vision in his left eye following his in-service injury. The report indicated that he separated from service with impaired left eye vision, although this statement appears to be based on the Veteran's own report. The report acknowledged the Veteran's assertion of being informed that he had scar tissue that had developed in the back of his eye that was not repairable. A dense cataract subsequently formed, and the Veteran was advised to not have it removed due to his non-performing eye as a result of previous injury. An August 2018 VA examiner diagnosed bilateral cataracts and opined that the Veteran's claimed eye condition was less likely than not incurred in, or caused by, a claimed in-service injury, event, or illness. The examiner's rationale, as noted on the October 1961 report, indicated that the Veteran sustained an injury to the right temple and that he had 20/20 vision bilaterally at the time of his separation from service. Notably, the examiner indicated that, while the Veteran reported having scar tissue, such scarring was unable to be visualized on examination, given the extent of the cataract. The examiner indicated that, if the Veteran were referred to a cataract surgeon, and it were deemed that he could have some improvement to his vision by undergoing cataract surgery, then a more in depth analysis could be made as to whether his low vision were due to the cataract only or a combination of the cataract and other ocular problems. The examiner expressed uncertainty as to whether the Veteran had other causes for loss of vision in the left eye, and did not clearly address whether he likely had scarring, as described, and if so, whether such was at least as likely as not the result of the in-service injury. Also, the examiner did not specifically address the Veteran's contention that his in-service injury also affected his left eye, or address the possibility that he still could have been beginning to experience loss of vision due to scarring or other cause, while having recorded normal visual acuity on his separation examination. The examiner provided an addendum opinion in October 2018, when he noted that it was less likely than not that the in-service injury caused the Veteran's cataracts, as traumatic cataracts typically would progress very quickly, within the time frame of 6 months to a couple of years. The examiner, however, again relied on the separation examination report indicating that the Veteran had 20/20 bilateral vision at his separation from service, but still did not address his report of declining vision at separation. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not take into account the claimant's reports of symptoms and history, even if recorded in the course of the examination). Accordingly, where adequate examination addressing the nature and etiology of the Veteran's claimed eye condition has not been provided, the Board finds that remand of this matter is warranted to afford the Veteran a new VA eye examination to determine the nature and etiology of his claimed eye condition. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service Connection for Bilateral Hearing Loss The Veteran asserts that his bilateral hearing loss developed as a result of his exposure to hazardous military noise during his confirmed duties as an artillery crewman during service. He testified that was exposed to artillery fire from 75-, 105-, and 155-millimeter cannons, without the use of hearing protection. In the report of a March 2017 VA-contracted examination, an examiner provided an unfavorable opinion with respect to the etiology of the Veteran's hearing loss. The examiner, however, relied only on the finding that the Veteran's STRs showed hearing within normal limits, and the bare supposition that hearing loss from noise exposure would have been preset at his separation examination. Notably, the examiner did not address the possibility that the Veteran may have developed a delayed-onset hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A remand is, thus, warranted to afford the Veteran a new VA audiological examination to determine the nature and etiology of his bilateral hearing loss. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon, 20 Vet. App. 79. As to the assertion that the Veteran had normal hearing acuity at separation, the Board observes that, prior to January 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Thus, the Veteran's audiometric testing results reported in his June 1962 separation examination are assumed to have been reported in ASA units. Since VA evaluates current hearing loss in ISO-ANSI standards, the units from his separation examination must be converted as shown in the adjoining parentheses below: HERTZ 500 1000 2000 3000 4000 RIGHT -10 (5) -5 (5) -5 (5) --- 5 (10) LEFT 5 (20) 5 (15) 5 (15) --- 10 (15) Based on these audiometric testing results, the Veteran is shown to have had some loss of hearing acuity at all tested frequencies, approximating a level of hearing impairment. Cf. Hensley, 5 Vet. App. at 158 (the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss). These findings should be considered by a VA examiner on remand. Service Connection for Right and Left Shoulder Disabilities The Veteran contends that he incurred injuries to his shoulders during service as a result of being involved in a motor vehicle accident when the truck he was riding in went into a ditch and rolled over. He contends that he has experienced shoulder problems since serviceand that he saw an orthopedic surgeon approximately 20 years ago who told him that both of his shoulders were in "really bad shape." In his June 1962 report of medical history, in association with his separation examination, the Veteran checked the box indicating that he had a painful or trick shoulder or elbow. The report indicated that he had injured his right arm in a truck accident while on maneuvers. The Veteran was afforded a VA-contracted shoulder and arm conditions examination in March 2017, at which time bilateral rotator cuff tendonitis was diagnosed. In providing an unfavorable etiology opinion, however, the examiner relied on an absence of evidence of recurrent or chronic shoulder problems during or since the Veteran's separation from service. See Dalton, 21 Vet. App. at 39-40; Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (a VA's examiner's opinion relying on an absence of contemporaneous medical evidence, and not considering lay statements, is inadequate). Given the deficiencies in the March 2017 VA examination report, remand of these claims is warranted to obtain adequate etiology opinions addressing the Veteran's diagnosed shoulder disabilities, and considering all evidence of record. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. 79. Finally, with respect to all claims, the Veteran reported at his March 2021 hearing that he was awarded disability benefits administered by the Social Security Administration (SSA), including for his bilateral shoulder disabilities. Notably, however, it does not appear that his SSA records have been requested or obtained. These records must be obtained and associated with the claims file. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). Thus, remand is also warranted to allow the Agency Original of Jurisdiction to request the Veteran's SSA records. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the SSA all available records pertinent to the Veteran's claim(s) for SSA disability benefits, as well as any medical records relied upon concerning the claim(s). Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the file. 2. Then, arrange for the Veteran to undergo a new VA examination for his claimed bilateral eye condition, preferably by an examiner with expertise in evaluating ophthalmological conditions. Any and all indicated studies and tests deemed necessary by the examiner, should be accomplished. The claims file and a copy of this REMAND should be made available to the examiner for review. After review of the record and completion of the examination (including any necessary tests and studies), the VA examiner should: (a.) clearly identify all eye conditions (other than refractive error)to include specifically cataracts and any scarring in the back of the eyecurrently present or present at any point pertinent to the current claims (even if now asymptomatic or resolved). In addressing this matter, the examiner should specifically determine whether the examination/evidence of record (including the Veteran's lay reports) reasonably indicates that the Veteran has suffered scarring in the back of the eye, as described. (b.) For each such identified eye condition, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater), that such had its onset during service, or is otherwise medically-related to the Veteran's service, to include the contusion that he sustained while playing softball during service, which was noted to have resulted in conjunctival hemorrhaging and blurring vision. In addressing the above, the examiner must consider and discuss all pertinent medical evidence, to include the September 2020 private optometrist report and lay evidence of record (including the Veteran's assertions that he experienced declining vision in his left eye beginning at the time of his in-service injury, and that he was informed that he had scarring in the back of his eye). The examiner is advised that the Veteran is competent to report his eye condition symptoms, including declining vision, and the onset and continuity of such symptoms. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. In this regard, a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Also, arrange for the Veteran to undergo a new VA audiological examination. Any and all indicated studies and tests deemed necessary by the examiner, to include audiometry and speech discrimination testing, should be accomplished. The claims file and a copy of this REMAND should be made available to the examiner for review. After review of the record and completion of the examination (including any necessary tests and studies), the VA examiner should: (a.) provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater), that the Veteran's bilateral hearing loss onset during service, or is otherwise medically-related to his service, to include his exposure to acoustic traumas/hazardous military noise during service, as evinced by the record, and declining hearing acuity, as indicated in his separation examination report, upon conversion to ISO-ANSI standards. (b.) If the Veteran's bilateral hearing loss is deemed to not be at least as likely as not etiologically related to his service on a direct basis, the examiner should also provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the hearing loss was caused, or aggravated (made worse) beyond its natural progression by the Veteran's service-connected tinnitus. The examiner is advised that the absence of evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Thus, the examiner should consider a delayed onset theory of causation for the Veteran's hearing loss. The examiner must also consider and discuss all pertinent medical evidence and lay assertions, to include the Veteran's assertions as to the nature, onset, and continuity of his hearing loss symptoms. The examiner is further advised that the Veteran is competent to report his hearing loss symptomatology and the onset of hearing impairment. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. 4. Also, arrange for the Veteran's claims file to be reviewed by an appropriate VA examiner to obtain new opinions as to the etiology of his claimed right and left shoulder disabilities. The claims file and a copy of this REMAND should be made available to the examiner for review. If the examiner finds that a new examination is warranted for any claimed disability, in order to provide the requested etiology opinion, arrange for the Veteran to be afforded such examination. If the Veteran is examined, any and all indicated studies and tests deemed necessary by the examiner should be accomplished. After review of the record, and completion of any examination (including any necessary tests and studies), for each of the Veteran's diagnosed shoulder disabilities of record, to include rotator cuff tendonitis of each shoulder, the VA examiner should provide a new opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that such disability had its onset during service, or is otherwise medically-related to the Veteran's service, to include his documented report of having shoulder and arm pain at the time of his separation from service, and his report of having shoulder problems since service. In addressing the above, the examiner must consider and discuss all pertinent medical evidence, to include evidence of treatment and diagnoses of the claimed shoulder disabilities; and lay evidence of record, to include the Veteran's reports as to the nature and onset of his claimed disabilities and his reports of suffering a continuity of symptoms of the claimed disabilities since service. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact determinations made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.