Citation Nr: 0517807 Decision Date: 06/30/05 Archive Date: 07/07/05 DOCKET NO. 03-27 511 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for retinitis pigmentosa. 2. Entitlement to service connection for a psychiatric disorder, claimed as depression. 3. Entitlement to service connection for uterine fibroid tumors. WITNESSES AT HEARING ON APPEAL The veteran and her daughter ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from June 1982 to July 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2002 decision by the RO in St. Petersburg, Florida. In April 2002, the veteran's case was transferred to the jurisdiction of the RO in Atlanta, Georgia. In January 2005, the Atlanta RO notified the veteran that her appeal had been certified to the Board. In February 2005- less than 90 days after the aforesaid notification-she wrote to the Board and asked to revoke the power of attorney executed in favor of her state representative. See 38 C.F.R. §§ 20.607, 20.1304(a). Although she indicated that she might like to appoint a new representative, she has not done so thus far. For the reasons set forth below, this appeal is being REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the veteran if further action is required on her part. REMAND Generally speaking, when VA receives a complete or substantially complete application for benefits, it is required to make reasonable efforts to help the claimant obtain evidence necessary to substantiate her claim, to include relevant records from Federal and private sources. 38 U.S.C.A. § 5103A(b), (c) (West 2002); 38 C.F.R. § 3.159(c)(1)-(3) (2004). VA is also required to provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2004). In the present case, the record shows that the veteran is in receipt of disability benefits from the Social Security Administration (SSA) due, at least in part, to one or more of the disabilities for which she is presently seeking service connection. Thus far, no efforts have been made to obtain a copy of the SSA's decision or the evidence underlying it. Because the records from SSA could contain information relevant to her VA claims, the records should be obtained. The veteran's DD 214 shows that she was separated from service by reason of "unsatisfactory performance." The veteran contends that her poor performance was the result of stress and depression. She also contends that she performed poorly on marksmanship and "night firing" due to problems she had with her eyes during service. Under the circumstances, the Board finds that her service personnel records should be obtained. At the time of the veteran's service separation examination in June 1984, it was noted that she had a fibroid tumor on her cervix and that tumor sonograms were done at "Northern Virginia Hospital." Currently, there are no records in the claims file from that facility. On remand, the veteran should be asked to provide an appropriate release so that the records can be procured. In March 2005, Craig N. Bash, M.D., provided an opinion with respect to the etiology of the veteran's retinitis pigmentosa. In the opinion, Dr. Bash noted, among other things, that the veteran had "several lay statements[] which document that she had eye problems while on leave from the military . . .." Although Dr. Bash indicated that the cited lay statements were attached to his opinion, no such statements were ever received at the Board. On remand, the veteran should be given an opportunity to submit these statements so that they can be associated with her claims file. In his March 2005 submission, Dr. Bash opined, in pertinent part, that the veteran's retinitis pigmentosa began during her period of service. Notably, however, the evidentiary facts set out in Dr. Bash's opinion are not entirely accurate. Specifically, although Dr. Bash states that the veteran left the service with 20/40 visual acuity, the report of the veteran's service separation examination, dated in June 1984, shows that her uncorrected visual acuity was 20/20 in the right eye for both near and distant vision, and in the left eye for near vision, and that she had uncorrected visual acuity of 20/30 in the left eye for distant vision. Because Dr. Bash has not addressed the likely etiology of the veteran's disease in light of this particular information, and because it appears (as noted above) that there is additional evidence that needs to be procured on the matter, the Board will arrange to have the veteran afforded a VA examination for purposes of obtaining another etiological opinion. The Board will also arrange to have the veteran examined for purposes of assessing the likely etiology of her current psychiatric difficulties, and to determine whether she presently suffers from disability attributable to the fibroid tumor(s) noted in service. A psychiatric examination is necessary because the veteran has reported that she was depressed and anxious in service; because she has submitted a lay statement to support that assertion; because she is shown to have a current psychiatric disorder; because there is lay evidence in the record to the effect that she has experienced recurring psychiatric symptoms since the time of her discharge from the military; and because it is not clear from the record whether her current psychiatric difficulties can be properly attributed to service. See 38 C.F.R. § 3.159(c)(4). Similarly, a gynecological examination is necessary because, although the presence of a fibroid tumor was noted on the report of her service separation examination, and she has testified that the tumor has never been removed and continues to complain of heavy bleeding associated with the tumor, it is not entirely clear from the record that she has a current, clinically identifiable disability that can be attributed to the fibroid tumor(s) noted in service. Id. The veteran is hereby notified that it is her responsibility to report for the examinations scheduled in connection with this REMAND, and to cooperate in the development of her case. The consequences of failure to report for a VA examination without good cause may include denial of her claim(s). 38 C.F.R. §§ 3.158, 3.655 (2004). For the reasons stated, this case is REMANDED for the following actions: 1. Obtain copies of any records pertaining to the veteran's award of SSA disability benefits, to include any medical records considered in making that award. The materials obtained should be associated with the claims file. 2. Obtain a complete copy of the veteran's service personnel records. The materials obtained should be associated with the claims file. 3. Ask the veteran to provide an appropriate release so that relevant records can be obtained from "Northern Virginia Hospital," pertaining to her claim for fibroid tumors. If she provides such a release, take action to procure the relevant records, following the procedures set forth in 38 C.F.R. § 3.159. The materials obtained should be associated with the claims file. 4. Ask the veteran to provide copies of the lay statements referred to in Dr. Bash's March 2005 opinion, pertaining to the eye problems she reportedly experienced in service. The materials obtained should be associated with the claims file. 5. After the above development has been completed, schedule the veteran for an eye examination by an appropriate specialist. The examiner should review the claims file, and should indicate in the examination report that the claims file has been reviewed. After examining the veteran, and conducting any indicated testing, the examiner should offer opinions as to each of the following questions: a. Is it clear and unmistakable (i.e., obvious, manifest, or undebatable) that the veteran's retinitis pigmentosa existed prior to her entry into the military? b. If it is clear and unmistakable that the veteran's retinitis pigmentosa existed prior to her entry into the military, is it also clear and unmistakable (i.e., obvious, manifest, or undebatable) that it underwent a chronic or permanent (as opposed to a transient, acute, or temporary) increase in severity during the veteran's period of active duty service? (The examiner should comment on the significance, if any, of the various findings relating to the veteran's eyes during service, to include on examinations conducted on July 1, 1982; December 14, 1983; and June 29, 1984.) c. If it is clear and unmistakable both that the veteran's retinitis pigmentosa existed prior to her entry into the military and that the condition underwent a chronic or permanent increase in severity during her period of active duty service, was the increase in severity during service due to the natural progress of the disease? d. If it is not clear and unmistakable that the veteran's retinitis pigmentosa existed prior to her entry into the military, is it at least as likely as not (i.e., is it 50 percent or more probable) that the retinitis pigmentosa was incurred during service? A complete rationale should be provided. 6. Schedule the veteran for a psychiatric examination. The examiner should review the claims file, and should indicate in the examination report that the claims file has been reviewed. After examining the veteran, and conducting any indicated testing, the examiner should indicate the current diagnosis or diagnoses of the veteran's psychiatric disorder(s). For each current diagnosis, the examiner should also offer opinions as to each of the following questions: a. Is it clear and unmistakable (i.e., obvious, manifest, or undebatable) that the veteran had this psychiatric disorder prior to her entry into the military? b. If it is clear and unmistakable that the veteran had this psychiatric disorder prior to her entry into the military, is it also clear and unmistakable (i.e., obvious, manifest, or undebatable) that it underwent a chronic or permanent (as opposed to a transient, acute, or temporary) increase in severity during the veteran's period of active duty service? c. If it is clear and unmistakable that the veteran had this psychiatric disorder prior to her entry into the military, and if it is clear and unmistakable that the condition underwent a chronic or permanent increase in severity during her period of active duty service, was the increase in severity during service due to the natural progress of the disease? d. Is it at least as likely as not that the veteran's current diagnosis was incurred during her period of active military service? If so, is it at least as likely as not that she developed this as a new psychiatric disorder during service, superimposed on a pre-existing disorder? A complete rationale should be provided. 7. Schedule the veteran for a gynecological examination. The examiner should review the claims file, and should indicate in the examination report that the claims file has been reviewed. After examining the veteran, and conducting any indicated testing, the examiner should offer an opinion as to whether the veteran has a current disability that can be attributed to fibroid tumor(s) noted in service. A complete rationale should be provided. 8. Thereafter, take adjudicatory action on the veteran's claims. If any benefit sought is denied, furnish the veteran and her representative, if any, a supplemental statement of the case (SSOC). After the veteran and her representative, if any, have been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. No action is required by the veteran until she receives further notice, but she may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (2004).