Citation Nr: 1311014 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 10-44 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for glaucoma, to include as secondary to eye medication. 2. Entitlement to service connection for cataracts (claimed as bilateral corneal prostheses), to include as secondary to eye medication. 3. Entitlement to service connection for cramps in the neck, to include as secondary to the service-connected bilateral pterygium. 4. Entitlement to service connection for migraine headaches, to include as secondary to cramps in the neck. 5. Entitlement to service connection for a left shoulder disorder, to include as secondary to the service-connected bilateral pterygium. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from September 1962 to September 1965. This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. The record shows that the Veteran requested a hearing before a member of the Board via videoconference from the RO. 38 C.F.R. § 20.700(a) (a hearing on appeal will be granted if the appellant or his representative has expressed a desire to appear in person). However, he withdrew this hearing request in correspondence dated in November 2010. 38 C.F.R. § 20.702(e) (a request for a hearing may be withdrawn by the appellant at any time before the date of the hearing). Therefore, no hearing is required prior to consideration of the appeal. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The issues of entitlement to service connection for glaucoma, cataracts, neck cramps, migraine headaches, and a left shoulder disorder must be remanded for further development of factual and medical evidence, to specifically include obtaining any outstanding VA treatment records and private treatment records and to obtain VA medical opinions which address all of the theories of entitlement raised by the Veteran and the evidence of record. The Veteran is service-connected for bilateral pterygium. The issues on appeal are related to the Veteran's service-connected eye disorder. Specifically, he asserts that he is entitled to service connection for glaucoma and cataracts, to include as secondary to the use of Blephamide eyedrops for a period of five years to treat his service-connected eye disorder. Additionally, he contends that he is entitled to service connection for a cervical spine disorder (claimed as neck cramping) and a left shoulder disorder, to include as secondary to his use of bifocals due to his service-connected eye disorder. Finally, he asserts that he is entitled to service connection for migraine headaches, to include as secondary to his cervical spine disorder (claimed as neck cramping). The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. With respect to VA's duty to assist, it appears that there may be additional medical records that are pertinent to the claims on appeal. The record includes several medical opinions from the Veteran's private ophthalmologist which suggest that the Veteran was treated at his practice since April 2011. See May 2011, June 2011, and September 2011 opinions. However, records pertaining to treatment from this ophthalmologist have not been obtained and associated with the claims file. Additionally, an April 2011 medical opinion from the Veteran's private orthopedic surgeon referenced x-rays and magnetic resonance imaging (MRI) studies that show the Veteran has "multiple areas of degeneration at all levels of the neck including degeneration of the discs, including facet joint arthritis, including narrowing of the neural foramina." The x-ray and MRI findings have not been associated with the claims file. The Board also notes that the most recent VA treatment records associated with the record are dated in February 2010. Therefore, further attempts should be made to obtain any outstanding VA treatment records pertinent to the claimed disabilities. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are considered to be constructively contained in the claims folder and must be obtained before a final decision is rendered). VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In an internet article that the Veteran submitted in October 2009, the author reported that Blephamide is an eyedrop containing an antibiotic and a type of corticosteroid medication. He noted that Blephamide is "intended for short-term use for eye conditions such as conjunctivitis, styes[,] and very mild corneal conditions." He also provided: These drops should not be used for long periods of time for a number of reasons. First, bacteria can develop resistance when a particular antibiotic is used for an extended period. Due to the indiscriminate use of antibiotics, some of our most powerful antibiotics are now helpless against certain resistant organisms. From the standpoint of the individual patient, a more immediate reason not to use Blephamide or Tobradex over the long term is that corticosteroids can cause significant side effects. The most dangerous is glaucoma. If not detected and treated in time, steroid-induced glaucoma can lead to loss vision and eventual blindness. Steroids can also induce the formation of a cataract. During the December 2009 VA examination, the examiner relied on the fact that while the record shows that cataracts were noted in 1994, there were no records of the cataracts or the amount of steroids the Veteran used from his discharge from service until 1994. She opined that the Veteran's cataracts were less likely as not (less than 50/50 probability) caused by or a result of his service-connected pterygium or his use of Blephamide. She indicated that she was unable to "emphatically" state that the Veteran's cataracts were caused by the Veteran's Blephamide (steroids) use in the 1960's. She noted that there was no documentation that the Veteran had cataracts when he was discharged from service and that there were no records pertaining to cataracts or the use of steroids until 1994, almost 30 years after separation from service. She also reported that if the cataracts were caused by the use of Blephamide, she "would have expected them sooner after use." She noted that steroids can cause the type of cataracts that the Veteran had, but the "long time interval would only make it conjecture." During the December 2009 VA examination, the Veteran also complained that when he tilted his head back to read, it caused his neck to get stiff. He reported that his neck stiffness and cramping required the use of steroid injections. The examiner opined that the Veteran's neck cramps were not caused by or a result of the service-connected pterygia or the use of Blephamide. She stated that the neck condition had "absolutely [] nothing" to do with the use of Blephamide or the service-connected pterygia. She noted that there was "absolutely no proof" that the ptyergia caused him to have to use bifocals and caused him to have a stiff neck. She noted that his stiff neck and his service-connected eye disability were "totally unrelated." The examiner also added that the Veteran also claimed that he had migraine headaches related to his stiff neck. She stated that the headaches had "nothing" to do with the service-connected pterygia or the use of Blephamide during service. She also noted that the Veteran had no migraine headaches during active duty. Following the December 2009 VA examination, the Veteran submitted several medical opinions from his treating private ophthalmologist and orthopedic surgeon which suggest a possibility that the claimed disorders were caused by the Veteran's chronic use of Blephamide eyedrops to treat his service-connected eye disability in service and his use of bifocals. See April 2011, May 2011, June 2011, and September 2011 private medical opinions. Therefore, the Board finds that a clarifying medical opinion is necessary for the purpose of determining the nature and etiology of any glaucoma, cataracts, neck cramps, migraine headaches, and a left shoulder disorder that may be present. Since the evidence is insufficient to render a decision on this claim, a VA examination as to the etiology of these claimed disabilities is warranted. Accordingly, the case is REMANDED for the following action: 1. Ascertain if the Veteran received any VA, non-VA, or other medical treatment that is not evidenced by the current record - to specifically include, private ophthalmology and orthopedic treatment notes, including any x-ray or MRI studies pertaining to the cervical spine and/or left shoulder, and any VA treatment records not associated with the record. The AOJ must attempt to obtain these records, as well as any other pertinent records, and associate them with the claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform him and provide him an opportunity to submit copies of the outstanding medical records. 2. Schedule the Veteran for a VA eye examination for the purpose of ascertaining whether the Veteran's claimed glaucoma and cataracts are the result of any in-service event or incident, to include the chronic use of Blephamide eyedrops. The claims file must be sent to the examiner for review. The examiner should identify whether the Veteran has a current eye disability, to include glaucoma and/or cataracts. Then, as to any diagnosed disability, the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the disability is related to the Veteran's service. He or she should also state whether it is at least as likely as not that the disorder is either caused by or permanently aggravated by the use of Blephamide eyedrops to treat the service-connected pterygia based upon chronic conjunctivitis. The examiner is also requested to comment on the private ophthalmologist's opinions of record and the internet article submitted by the Veteran in October 2009. Additionally, the examiner is requested to provide an opinion as to whether the Veteran must wear bifocals due to his service-connected pterygia based upon chronic conjunctivitis. A complete rationale should accompany any opinion provided. 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. 3. Schedule the Veteran for a VA orthopedic examination for the purpose of ascertaining whether the Veteran's claimed cervical spine and left shoulder disabilities are the result of any in-service event or incident, to include the use of bifocals due to his service-connected pterygia. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should first identify whether the Veteran has a current cervical spine and/or left shoulder disability. Then, as to any diagnosed disability, the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the disability is related to the Veteran's military service. He or she should also state whether it is at least as likely as not that the disorder is either caused by or permanently aggravated by the use of bifocals due to the service-connected pterygia based upon chronic conjunctivitis. A complete rationale should accompany any opinion provided. 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. 4. Schedule the Veteran for a VA examination for the purpose of ascertaining whether the Veteran's claimed migraine headaches are the result of any in-service event or incident, to include the use of bifocals due to his service-connected pterygia and/or any neck or left shoulder disabilities related to the Veteran's use of bifocals. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should first identify whether the Veteran has a current migraine headache disability. Then, as to any diagnosed disability, the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that the disability is related to the Veteran's military service. If the VA orthopedic examiner determines that the Veteran's claimed cervical spine and/or left shoulder disabilities was caused or aggravated by his use of bifocals due to the service-connected pterugia, he or she should also state whether it is at least as likely as not that the migraine headache disorder is either caused by or permanently aggravated by the cervical spine or left shoulder disorders. A complete rationale should accompany any opinion provided. 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. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters 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. 2012). _________________________________________________ H. N. SCHWARTZ 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) (2012).