Citation Nr: 1101678 Decision Date: 01/14/11 Archive Date: 01/20/11 DOCKET NO. 09-02 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a right eye disorder. 2. Entitlement to service connection for residuals of a right foot fracture. 3. Entitlement to service connection for residuals of a left arm dislocation. 4. Entitlement to service connection for residuals of a broken left fourth finger. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who had verified active duty for training service from May 12, 1957, To November 3, 1957. The Veteran's report of active service from January 1957 to November 1960 is presently unverified. Although the Veteran reported in his August 2005 application that he had not served under any other name, the service department reported in October 2006 that the Veteran had served under a variation of his name without the second half of the hyphenated last name the Veteran provided on his application and in correspondence with VA. Reports show the service number provided by the Veteran was used in the search for his service records. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2010, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. He waived agency of original jurisdiction review of additional evidence submitted at his hearing. 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 Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), held that the VCAA notice requirements applied to all elements of a claim. The Veteran was provided VCAA notice by correspondence dated in February 2006, March 2006, April 2006, and July 2008. The VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. For records not in the custody of a Federal department or agency, reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile; however, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records. 38 C.F.R. § 3.159(c)(2). VA regulations provide that a medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). The Court has held the types of evidence that "indicate" that a current disability "may be associated" with military service include credible evidence of continuity and symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Court has held, however, that VA was not required to provide a medical examination when there was no credible evidence establishing an event, injury, or disease in service. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). In this case, the Board notes that the Veteran's service treatment records are unavailable and that the record indicates they may have been lost due to fire. In such cases, there is a heightened duty to assist the Veteran in developing the evidence that might support his claim. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). The Veteran was notified of this matter and provided opportunities to identify additional evidence by VA correspondence dated in December 2006 and March 2007. Service department correspondence also shows the Veteran was advised to submit additional information about his service and to request that an attempt be made to reconstruct his file. The Veteran has been advised that he could submit alternate source evidence such as "buddy" affidavits or post-service medical reports that related to his claims, but he has reported that he has no additional information to submit in support of his claims. He reported that he had no additional evidence to submit in support of his claims in correspondence dated in October 2006, April 2007, September 2008, and October 2008. At his April 2010 hearing he testified that he was first treated for a right eye disorder in 1983, that he had no problems with the issues on appeal for many years after service which required more than self-treatment, and that he had not discussed specific injuries in service with his family members. He testified that he began receiving Social Security Administration benefits (SSI) in 2004. The service department verified that records showed the Veteran had active duty for training service from May 12, 1957, to November 3, 1957, but that there was no evidence of any other active military service. In his August 2005 VA application the Veteran reported active service from January 1957 to November 1960 and in an April 2006 National Archives and Records Administration form he reported he had served at Fort Eustis, Virginia, from 1957 to 1959 and at Fort Riley, Kansas, in 1958. The available record includes private medical records dated in September 1983 from H.L.M., Jr., M.D., which provided a diagnosis of idiopathic optic neuritis and referred the Veteran to an eye clinic and records dated in March 2003 which noted the Veteran ambulated using a crutch and that he reported he had sustained a fracture in an automobile accident earlier that month. The Board notes that the Veteran has not provided any information as to the records associated with the apparent medical treatment he received in 1983 or as a result of his injury in March 2003. The Board also notes that the present record is unclear as to the extent of the Veteran's claimed right foot injury in service and as to the date of the onset of his left shoulder pain. He described his right foot injury as a fracture in his original claim, but an April 2005 treatment report indicates he reported he sustained a right foot hairline fracture in service when he caught a barrel. A May 2005 report, however, noted no fracture was identified in service. A June 2006 VA treatment report noted the Veteran stated he injured his left shoulder while unloading a fifty-five gallon drum during service and that he stated he began having pain in the left shoulder approximately 20 years earlier when he picked up his daughter. An April 2010 statement from a VA staff physician noted the Veteran reported a history of injuries to his left shoulder and "left" foot in service with pain and limitation starting after that injury. An October 2008 statement from a VA physician noted that the Veteran was hit in the right eye by a baseball while in the service over 20 years earlier and that following that injury he developed serious glaucoma and lost most of the vision in his right eye. There is no indication, however, that the physician was aware of a September 1983 private medical report which had confirmed an almost total loss of right eye vision and provided a diagnosis of idiopathic optic neuritis without indication of any prior trauma to the right eye. The Court has noted that idiopathic is "defined in DORLAND'S MEDICAL DICTIONARY 815 (27th ed. 1988) as 'of the nature of an idiopathy [a morbid state of spontaneous origin; one neither sympathetic nor traumatic]; self- originated; of unknown causation." Allen v. Brown, 7 Vet. App. 439, 443. Based upon a review of the available evidence of record, the Board finds that further development is required prior to appellate review. The Veteran should be afforded an opportunity to provide enough information to identify and locate any existing Federal records and to either provide copies of all available pertinent private treatment records or authorization for VA to assist him in obtaining these records. It is significant to note that the Court held that VA's "duty to assist is not always a one-way street" and that if a veteran wishes help he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide specific information as to the dates, units, geographical location, and nature of any active duty service and whether or not he may have served under any other name including any hyphenated variations of his name. He should be requested to provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and/or non-VA, who have provided treatment pertinent to the issues on appeal. He should be specifically requested to either provide copies of the records of the apparent medical treatment he received in 1983 and as a result of his injury in March 2003 or to provide authorization for VA to assist him in obtaining these records. After the Veteran has signed any appropriate releases all identified pertinent records should be obtained and associated with the claims folder. Attempts to procure records should be documented in the file. If records cannot be obtained, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Thereafter, appropriate action should be taken to again attempt to verify the Veteran's reported active duty service from January 1957 to November 1960. Efforts should include a search of alternative records, such as unit morning reports, if sufficient information for a reasonable search for existing records is obtained from the Veteran. Attempts to procure records should be documented in the file. 3. Appropriate efforts should be taken to obtain a copy of the Veteran's Social Security Administration benefit claim, as well as, any associated medical records. All attempts to procure records should be documented in the file. 4. Upon receipt of pertinent evidence or upon a determination that further attempts to obtain additional evidence would be futile, the Veteran should be scheduled for an appropriate VA examination for opinions as to whether there is at least a 50 percent probability or greater (at least as likely as not) that he has present right eye, right foot, left arm or shoulder, or left fourth finger disabilities as a result of injuries during active service. All indicated tests and studies necessary for an adequate opinion should be conducted. Prior to the examination, the claims folder and a copy of this remand must be made available for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner should summarize the pertinent evidence of record and reconcile any opinions provided with the medical opinions provided by private and VA physicians in February 2006, March 2007, April 2007, October 2008, November 2008, and April 2010. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. There is no need, however, to eliminate all lesser probabilities or to ascertain greater probabilities as to etiological causes. All examination findings, along with the complete rationale for the opinions expressed, should be set forth in the examination report. 5. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with appropriate consideration of all the evidence of record. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant 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. 2010). _________________________________________________ S. L. Kennedy 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) (2010).