Citation Nr: 0823153 Decision Date: 07/14/08 Archive Date: 07/23/08 DOCKET NO. 06-30 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a bilateral eye disorder. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The veteran had active military service from February 1953 to December 1954. This appeal to the Board of Veterans Appeals (Board) is from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The most recent correspondence to the veteran was returned as undeliverable with no forwarding address from the postmaster. But as the Court held in Saylock v. Derwinski, 3 Vet. App. 294, 395 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)), "[p]rinciples of administrative regularity dictate a presumption that Government officials 'have properly fulfilled their official duties.'" For VA purposes, "notice" means written notice sent to a claimant as his or her most recent address of record. 38 C.F.R. 3.1(q) (2007). The presumption of regularity does not diminish the claimant's responsibility to keep VA informed of changes of address. If he does not do so, VA is not obligated to "turn up heaven and earth to find him." Hyson v. Brown, 5 Vet. App. 262, 265 (1993). In any event, the Board is remanding the claim for service connection for a bilateral eye disorder to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. REMAND Before addressing the merits of the claim for a bilateral eye disorder, the Board finds that additional development of the evidence is required. First, although the veteran's service medical records (SMRs) are lost or missing, the RO must account for any other means of obtaining SMRs or alternative forms of evidence to confirm in-service treatment for his eyes and/or injury to his eyes, such as clinical/hospital records and Surgeon General's Office (SGO) records. When SMRs are lost or missing, VA has a heightened obligation to satisfy the duty to assist. The veteran's SMRs appear to have been destroyed in the July 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. So VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist him in developing his claim, and to explain the reasons and bases for its decision. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). That said, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer, 19 Vet. App. at 217-18 (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). In other words, the legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). Missing records, while indeed unfortunate, do not obviate the need for probative medical nexus evidence causally relating the current disability at issue to the veteran's military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). Concerning this, the RO requested the veteran's SMRs but was told in October 2005 by the NPRC that there were no medical records on file for him due to fire-related destruction. Unspecified alternative records, however, although not provided to the RO, were cited by the NPRC in verifying the veteran's dates of service. That notwithstanding, the RO should account for any other means of obtaining SMRs or alternative forms of evidence to confirm an in-service treatment for an eye disorder and/or injury to his eye, such as clinical/hospital records and Surgeon General's Office (SGO) records. The Board notes that the NPRC's response indicated no SGO records were available. However, this was based upon a general request by the RO for the veteran's SMRs, without mention of the details the veteran has provided that could help identify his claimed in- service treatment. Specifically, the veteran maintains that he received in- service hospitalization for his eyes in either late 1953 or early 1954, during the Korean War, at the medical facility for the 1169th Engineering Battalion Headquarters, located at the 38th Parallel of Korea. In addition, he asserts he was being treated for an eye infection in a MASH hospital there for a period of one week, although he does not know the name of the hospital. And he adds that he was treated for burning and watering of the eyes while in Korea. Lastly, he states that his primary military occupational specialty (MOS) was Medical Specialist, MOS Code 91B20. See his July 2005 claim (VA Form 21-526), February 2006 notice of disagreement (NOD), and September 2006 substantive appeal (VA Form 9). Second, a September 2002 VA treatment record notes the veteran's reported treatment history for past eye surgery to treat ingrown eye lashes for his left eye, dating back approximately thirty years ago. The AMC should follow-up with him to identify the date and provider of this treatment, to obtain the relevant medical records, if available. Third, there is a need for a VA medical examination to determine the etiology of the veteran's bilateral eye disorder. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See also 38 U.S.C.A. § 5103A(d)(2) (2007); 38 C.F.R. § 3.159(c)(4)(i) (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Further, as discussed, when SMRs are lost or missing, VA has a heightened obligation to satisfy the duty to assist. So VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision ...." Cromer, 19 Vet. App. at 217-18. See also Cuevas, 3 Vet. App. at 548; O'Hare, 1 Vet. App. at 367. The Board does not dispute that the veteran has a current bilateral eye disorder. His VA treatment records, dated from 2002 to 2004, provide recent diagnoses for bilateral eye ailments, including conjunctivitis and inflammation of the eyelids (blepharitis), as well as diagnoses of recurrent ingrown eyelashes (trichiasis) based on the veteran's reported histories and repeated complaints. And since there are missing SMRs, the Board does not dispute the possibility, as the veteran contends, of an in-service injury or incurrence of disease involving his eyes, resulting from service in Korea during the Korean War. Rather, the dispositive issue is whether there is any competent and credible evidence linking his current bilateral eye disability to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The Board concludes the veteran has submitted sufficient evidence to meet the relatively low threshold of the third McClendon element. Indeed, this is satisfied by credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. See McClendon, 20 Vet. App. at 83. Concerning this, the veteran has submitted personal statements alleging a history of burning and watering of his eyes, beginning in service and continuing to the present day. See his July 2005 claim, February 2006 NOD, and September 2006 substantive appeal (VA Form 9). He added that he has had a growing problem over the years with burning and watering of the eyes, to the extent that he cannot see at times. See his February 2006 NOD. He has also had problems with in-grown eyelashes. Id. The Board finds his assertions of a continuity of symptomatology to be credible, as they are uncontradicted by the record. They are also consistent with reported histories in his VA treatment records from 2002 to 2004, which also note his complaints of suffering from persistent symptoms of burning, watering, and blurriness of his eyes since the Korean War. As mentioned, there even appears to be possible past surgery for a left eye disorder, approximately thirty years ago, as identified in his reported history of his September 2002 VA treatment record. Consequently, the exact nature and etiology of the veteran's bilateral eye disorder remains unclear. Therefore, the veteran needs to be examined for further medical comment concerning whether his bilateral eye disorder is possibly the result of bilateral eye injuries or disease sustained during the course of his military service. Based on the recent decision in McLendon, and due to the heightened duty to assist in cases where the veteran's SMRs are missing, a remand for a VA examination and opinion is required to determine the precise nature and etiology of his current bilateral eye disorder. Accordingly, the claim for a bilateral eye disorder is REMANDED for the following development and consideration: 1. Ask the veteran whether he has received any additional treatment for his bilateral eye disorder since September 2006, when the statement of the case (SOC) was issued. If he has, and the records are not already on file, obtain them. 2. Contact the veteran and ask that he complete and return the necessary authorization (VA Form 21-4142) for VA to obtain the private medical treatment records he recently identified in his September 2002 VA treatment record. That is, the veteran's reported history in that treatment record indicated past eye surgery to treat ingrown eyelashes for his left eye, dating back approximately thirty years ago. Ask that he assist, if possible, in obtaining these records by providing the relevant dates of treatment, names of the treating physicians, phone numbers and addresses; or by himself providing those treatment records, if for example, he has them in his personal possession. If they are private treatment records, and he provides a completed release form authorizing VA to obtain these confidential treatment records, then attempt to obtain them with at least one follow-up request if no reply is received. See 38 C.F.R. § 3.159(c)(1) (2007). 3. The AMC should account for any other means of obtaining SMRs or alternative forms of evidence to confirm n-service treatment for an eye disorder and/or injury to his eye, such as clinical/hospital records and Surgeon General's Office (SGO) records. The Board notes that the NPRC's previous response in October 2005, indicating no SGO records were available, was based upon a general request by the RO for the veteran's SMRs, without mention of the details the veteran has provided that could help identify his claimed in-service treatment. Specifically, the veteran maintains that he received in-service hospitalization for his eyes in either late 1953 or early 1954, during the Korean War, at the medical facility for the 1169th Engineering Battalion Headquarters, located at the 38th Parallel of Korea. In addition, he asserts he was being treated for an eye infection in a MASH hospital there for a period of one week, although he does not know the name of the hospital. And he adds that he was treated for burning and watering of the eyes while in Korea. Lastly, he states that his primary military occupational specialty (MOS) was Medical Specialist, Code 91B20. See his July 2005 claim, February 2006 NOD, and September 2006 substantive appeal. If the above development of alternative sources of SMRs proves futile, prepare a written memorandum to that account for the veteran. 4. Subsequently, schedule the veteran for a VA compensation examination to determine the nature and etiology of his current bilateral eye disorder. He is hereby advised that failure to report for his scheduled VA examination, without good cause, may have adverse consequences on this claim. The examination should include any diagnostic testing or evaluation deemed necessary. The claim file, including a complete copy of this remand, must be made available for review of the veteran's pertinent medical and other history. The examination report must state whether this review was accomplished. Based on a comprehensive review of the claim file, the examiner is asked to confirm whether the veteran has a current bilateral eye disorder. If he does, then the examiner must also provide an opinion as to following: (A) Whether it is at least as likely as not (a 50 percent or greater probability) that any current bilateral eye disorder is related to the veteran's military service? The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. If the examiner is unable to provide the requested opinion, the examination report should so state. 5. After completing the above and any other necessary development, then readjudicate the claim for a bilateral eye disorder in light of any additional evidence received since the September 2006 statement of the case (SOC). If this claim is not granted to the veteran's satisfaction, send him a supplemental SOC (SSOC) and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of this claim. The veteran has the right to submit additional evidence and argument concerning the claim the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).