Citation Nr: 24006366 Decision Date: 02/06/24 Archive Date: 02/06/24 DOCKET NO. 17-18 888 DATE: February 6, 2024 REMANDED Entitlement to a compensable rating for right ear hearing loss is remanded. The issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for head trauma is remanded. The issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, other than (PTSD), is remanded. Entitlement to service connection for a right eye disorder is remanded. Entitlement to service connection for cataracts is remanded. Entitlement to service connection for an eyesight disorder is remanded. The issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for hernia and groin disorder is remanded. The issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND A December 1992 administrative decision shows the Veteran had meritorious service from August 10, 1983, to August 9, 1986. The Veteran's discharge for the period of service from August 10, 1986, to March 4, 1992, was under dishonorable conditions. The issues on appeal arise from a rating decision in June 2013. The Board notes that the Veteran's representative in the December 2022 brief listed 20 issues as being on appeal, however the Veteran in his March 2017 Form 9 Appeal limited his appeal to the issues listed above and thus the Board only has jurisdiction to review the issues listed herein. The Board further notes that the issues of service connection for left ear hearing loss, low back disability, hernia and groin disorder, and anxiety were previously denied in a rating decision dated in February 1993, however as a notification letter of this rating decision does not appear to be in the claims file it is unclear whether the Veteran received notice of this rating action. This matter is further addressed below and these issues at this juncture are characterized as reflected herein. Further, in a rating decision in June 2015, the issue of service connection for PTSD was denied and the Veteran did not appeal this determination. In a March 2022 rating decision, a compensable rating for right ear hearing loss was continued. The issue of a compensable rating for right ear hearing loss is properly before the Board because a Board appeal was filed prior to the July 2021 claim and has not been withdrawn. In October 2022 the Veteran did not attend his Board hearing. In December 2023 a hearing clarification letter was sent to the Veteran and his representative as to whether he wanted a Board hearing. They were advised that if he did not respond within 30 days it would be assumed that the Veteran did not want a Board hearing. As they did not respond it may be assumed the Veteran no longer wants a Board hearing. Issues 1-10: Entitlement to a compensable rating for right ear hearing loss; entitlement to service connection for head trauma, right eye disorder, cataracts, and eyesight disorder; whether new and material evidence has been received to reopen the claims of entitlement to service connection for left ear hearing loss, an acquired psychiatric disorder other than PTSD, low back disability, hernia and groin disorder; and, entitlement to TDIU. Service treatment records show that on the May 1983 enlistment examination the Veteran had left ear hearing loss per the VA rating criteria. His spine was evaluated as normal. On April 28, 1984, the Veteran was assaulted and kicked along the left side of the face. Edema was noted with slight discoloration to the right side of the face around the orbital region. The assessment was possible fracture of the right orbit. Private medical records in July 1971 show the Veteran had scoliosis. A September 2011 private opinion shows that the Veteran cataracts were traumatically induced due to his history of head trauma, however no rationale was provided for the conclusion reached. On VA examination for traumatic brain injury (TBI) in June 2013, the diagnosis was TBI, however the examiner indicated that there was no TBI during service on April 18, 1984. The examiner stated that there was no TBI or residuals of TBI, however the examiner also stated that it did not increase during service but was due to the natural progression of the disease or injury. Thus, this opinion is inherently inconsistent. The examiner also stated that the Veteran's decreased peripheral vision was not from a traumatic brain injury but could be from assault to the eye. The examiner stated that additional medical information could be requested including additional examinations if necessary. On VA eye examination in June 2013, the diagnosis was cataracts. The examiner opined that it is less likely than not that the Veteran had an eye disorder due to service. The examiner's rationale was that service treatment records show that there was trauma to the right side of the face in 1984. The September 2011evaluation shows that the right eye cataract was small and left eye cataract was very large and dense. The Board's finds the examiner's opinion to be inconsistent as the examiner explained that a traumatic cataract can develop slowly over time after a sustained injury and acknowledged the Veteran's injury during service but opined that the Veteran did not have an eye disorder related to service. A VA audiological examination was scheduled for May 2013, however it was noted that the Veteran was incarcerated and unable to make the audiology examination. In the March 2014 notice of disagreement, the Veteran contended that the doctor who examined him was biased due to the fact that he was incarcerated and thus the Veteran requested a new VA examination. The Veteran stated that his hearing loss has worsened. He stated that he never fully recovered from his TBI in August 1984 and indicated that some of his service treatment records were lost. The Veteran reported that the black spots in his eyes were due to his TBI in 1984 and his cataracts also were traumatically induced. He stated that the vision in his right eye was increasing, and no vision test was performed. Documentation in November 2021 and March 2022 shows that the Veteran's audiological examination was cancelled at the request of VA. The United States Court of Appeals for Veterans Claims (Court) has held that VA must tailor its assistance to the peculiar circumstances of obtaining examination of an incarcerated claimant. Bolton v. Brown, 8 Vet. App. 185 (1995). The Court has cautioned "those who adjudicate claims of incarcerated veterans to be certain that they tailor their assistance to the peculiar circumstances of confinement." Id. As the examinations discussed above pertaining to the Veteran's service connection claims for eye disorders and head injury were inadequate, and an audiological examination was not conducted, the Agency of Original Jurisdiction (AOJ) should follow the appropriate procedures for scheduling the Veteran for the VA examinations. An attempt also needs to be made to obtain a copy of the cover letter to the February 1993 rating decision notifying the Veteran of that rating action. In the May 2017 Form 9 Appeal, the Veteran reiterated that VA lost his service treatment records dating back to 1984. Thus, it is unclear if there are any missing service treatment records and on remand, an attempt needs to be made to obtain any outstanding service treatment records from 1984. As for the issue of entitlement to TDIU, it is intertwined with the issues being remanded and should not be reviewed while the pending claims remain unresolved. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). By this remand the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: 1. With the Veteran's assistance obtain all outstanding treatment records, VA or private. All attempts associated therewith should be memorialized in the Veteran's claims file. 2. Contact all appropriate repositories of records to obtain any outstanding service treatment records from the Veteran's period of honorable service from August 10, 1983, to August 9, 1986, to specifically include any outstanding service treatment records from1984. All attempts associated therewith should be memorialized in the Veteran's claims file. 3. Follow the appropriate protocol for scheduling examinations of incarcerated veterans and schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and of etiology of his head trauma. After reviewing the claims file, to include a copy of this remand, and examining the Veteran the examiner is asked to render the opinions requested below. For all opinions rendered, the examiner must explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. The examiner is asked to do the following: a.) Determine whether the Veteran has a disability manifested by head trauma to include a diagnosis of TBI. b.) If so, assess whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran has a diagnosis of a disability manifested by head trauma, to include TBI, that had its onset in service or was otherwise related to service. In rendering the opinion, the examiner is asked to consider that service treatment records show that on April 28, 1984, the Veteran was assaulted and kicked along the left side of the face. Edema was noted with slight discoloration to the right side of the face around the orbital region. The assessment was possible fracture of the right orbit. 4. Follow the appropriate protocol for scheduling examinations of incarcerated veterans and schedule the Veteran for a VA eye examination with an appropriate examiner to determine the nature and etiology of his claimed right eye disorder, cataracts, and eyesight disorder. After reviewing the claims file, to include a copy of this remand, and examining the Veteran the examiner is asked to render the opinions requested below. For all opinions rendered, the examiner must explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. The examiner is asked to do the following: a.) Provide all diagnoses associated with the Veteran's claimed right eye disorder and eyesight disorder, other than cataracts. b.) Assess whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran has cataracts and a disability manifested by a right eye disorder and eyesight disorder, that had its onset in service or was otherwise related to service. In rendering the opinion, the examiner is asked to consider that service treatment records show that on April 28, 1984, the Veteran was assaulted and kicked along the left side of the face. Edema was noted with slight discoloration to the right side of the face around the orbital region. The assessment was possible fracture of the right orbit. 5. Follow the appropriate protocol for scheduling examinations of incarcerated veterans and schedule the Veteran for a VA audiological examination to determine the current severity of his right ear hearing loss disability. The claims file should be reviewed by the examiner in conjunction with the examination. The examination of hearing impairment should be conducted without the use of hearing aids. The examination must include a Maryland CNC Test to determine the speech recognition score and a pure tone audiometry test. Pure tone audiometric thresholds, in decibels, should be recorded for each of the frequencies at 1,000, 2,000, 3,000 and 4,000 Hertz, as well as the controlled speech discrimination testing-the Maryland CNC Test (reported in percentages of discrimination). The examiner is asked to describe the functional effects caused by this hearing disability, including on the Veteran's occupational functioning and daily activities and as described in his own words. 6. Attempt to associate a copy of the notice cover letter associated with the February 1993 rating decision. All attempts associated therewith should be memorialized in the Veteran's claims file. 7. Afterwards readjudicate the issues of whether new and material evidence was received to reopen the claims of entitlement to service connection for left ear hearing loss, low back disability, hernia and groin disorder, and acquired psychiatric disorder other than PTSD, and, if necessary, pursue additional development to include scheduling the Veteran for the appropriate VA examinations. The Board notes that a VA mental health examination dated in June 2013 is of record. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mac, M. 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.