Citation Nr: 1400866 Decision Date: 01/08/14 Archive Date: 01/23/14 DOCKET NO. 10-45 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tunnel vision. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to August 1992 and from September 2001 to September 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. 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 Unfortunately, another remand is required as based upon its review of the claims file, the Board finds there is a further duty to assist the Veteran with his claims therein. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). I. Outstanding Records The Board remanded the case in April 2013 for further evidentiary development, to include obtaining the Veteran's outstanding treatment records. Pursuant to the Board's April 2013 remand, the AMC, in April 2013 and June 2013 letters, requested the Veteran to complete and return a VA Form 21-4142 (Authorization and Consent for Release Information) for each private physician, including Family Care Practice, St. Michael's Rehabilitation Center, Health First, and Dr. Johns. The AMC further requested information concerning the dates and locations of the Veteran's employment at the U.S. Department of Justice, Federal Bureau of Prisons. Having received no response from the Veteran, the AMC issued a July 2013 supplemental statement of the case continuing the denial of claims and returned the case to the Board for appellate consideration of the claims. Subsequently, later that month, the Veteran submitted a July 2013 statement containing the requested information concerning his past employment with the U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Intuition in Texarkana, Texas; Federal Prison Camp Seymour Johnson in Goldsboro, North Carolina; and Federal Correctional Institution in Memphis, Tennessee, dating back to 1995. He also submitted VA Forms 21-4142 for Family Practice Clinic, St. Michaels Outpatient Rehabilitation Center, Health Care Express, and Dr. Randy Johns, and additional evidence consisting of lay statements from the Veteran's family and friends. Copies of private treatment records submitted along with these statements were already of record. The additional evidence submitted by the Veteran in July 2013 has not been previously considered by the RO/AMC when the Veteran's claims were last adjudicated in July 2013. This evidence is relevant to the issues currently addressed on appeal and the RO/AMC consideration of this additional evidence is not waived. Therefore, the Board must return this matter to the RO/AMC for consideration of the additional evidence and issuance of a supplemental statement of the case. See 38 C.F.R. § 19.31 (2013). Furthermore, when VA is put on notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records. Baker v. West, 11 Vet. App. 163, 169 (1998); Hayes (Gerald) v. Brown, 9 Vet. App. 67, 73-43 (1996) (quoting Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992)). Thus, in order to comply with the duty to assist, an attempt should be made by the RO/AMC to obtain any and all treatment records from the Veteran's private physicians, per the VA Forms 21-4142 submitted by the Veteran in July 2013. Additionally, where VA has constructive and actual knowledge of the existence of potentially pertinent reports in the possession of a Federal agency, an attempt to obtain those reports must be made. See Hyatt v. Nicholson, 21 Vet. App. 390, 394 (2007) (holding that the relevance of documents cannot be known with certainty before they are obtained). Therefore, the RO/AMC must attempt to obtain the Veteran's treatment records from all of the federal agencies where the Veteran was employed, as identified in his July 2013 VA Form 21-4128 (Statement In Support of Claim). II. Inadequate VA Examination Pursuant to the Board's April 2013 remand, a VA eye examination was obtained in May 2013 wherein the VA examiner opined that the Veteran's tunnel vision was not caused by or a result of the Veteran's active duty service. In support of this opinion, the examiner stated that a review of the medical records contained no previous indication of tunnel vision and there were no physical eye examination findings that supported the visual field finding of tunnel vision of both eyes. However, the Board finds this examination is not adequate for VA purposes because the rationale provided by the examiner is not sufficient. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that if VA provides a Veteran with an examination in a service connection claim, the examination must be adequate); see also Stegall v. West, 11 Vet. App. 268 (1998). The rationale provided by the May 2013 VA examiner primarily relied on the lack of prior diagnosis of the claimed condition in the Veteran's records, in direct conflict with the holding in Buchanan v. Nicholson, 451 F.3d at 1336-37 (holding that although "the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible."). In this regard, the Board observes that the May 2013 VA examiner did not address the Veteran's reports concerning the claimed left eye injury in 1982 or the reported symptoms of visual acuity, eye pain, dizziness, and sensitivity to lights. Given the deficiencies in the May 2013 VA examination report, the Board must remand this case for a supplemental medical nexus opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's treatment records from the U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Intuition in Texarkana, Texas; Federal Prison Camp Seymour Johnson in Goldsboro, North Carolina; and Federal Correctional Institution in Memphis, Tennessee, based on his July 2013 written statement. The RO must also obtain the Veteran's treatment records from Family Practice Clinic, St. Michaels Outpatient Rehabilitation Center, Health Care Express, and Dr. Randy Johns, according to the VA Forms 21-4142 submitted by the Veteran in July 2013. Once obtained, the records must be associated with the claims file. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claims. The Veteran must then be given an opportunity to respond. 2. Thereafter, forward the Veteran's claims file to the VA examiner who conducted the May 2013 VA eye examination, if available, to obtain a supplemental medical opinion regarding the relationship between the Veteran's currently diagnosed tunnel vision and his service. If the May 2013 VA examiner is not available, schedule the Veteran for a VA examination by an individual with the appropriate expertise. The claims file should be made available to the examiner in conjunction with the examination. Any and all indicated evaluations, studies, and tests should be accomplished. The examiner is requested to consider the reported history of the Veteran's symptoms, review the record, and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's tunnel vision is etiologically related to his period of active military service, to include the claimed left eye injury in service when a foreign body associated with welding activity entered his eye in 1982. In rendering the requested opinion and rationale, the examiner must note that the lack of a prior diagnosis of, or treatment for, the claimed condition in the Veteran's records is not necessarily fatal to the Veteran's claim and cannot be the only basis by which to reject a possible nexus to service. The examiner is asked to fully consider the Veteran's lay statements regarding the onset and symptoms of the claimed disability. A complete rationale for any opinion expressed should be provided. 4. After completing the above development, and any other development deemed necessary, readjudicate all claims on appeal taking into consideration all newly acquired evidence. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. The appellant has the right to submit additional evidence and argument on the 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. 2013). _________________________________________________ U. R. POWELL 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) (2013).