Citation Nr: 1110527 Decision Date: 03/16/11 Archive Date: 03/30/11 DOCKET NO. 07-18 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for left eye glaucoma. REPRESENTATION Veteran (Appellant) represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active military service September 1957 to December 1958. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO&IC). By that rating action, the RO&IC denied the Veteran's claim for service connection for left eye glaucoma. The Veteran appealed the RO's November 2006 rating action to the Board. In a September 2009 decision, the Board denied service connection for left eye glaucoma. The Veteran appealed the Board's September 2009 denial to the Court of Appeals for Veterans Claims (Court). In September 2010, the Court vacated the Board's September 2009 decision and remanded the appeal after submission of a Joint Motion for Remand (Joint Motion) by the parties. The appeal is REMANDED to the RO&IC/Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. REMAND Further development of the record is necessary to address the provisions of the Court's September 2010 Order and Joint Motion for Remand, primarily to ensure that the duty to assist under the Veterans Claims Assistance Act (VCAA) has been met with respect to this claim. The Veteran contends that his left eye glaucoma is the result of having been hit with a brick to the left side of his face while stationed at Fort Benning, Georgia from November 1957 to January 1958. (See NA Form 13055, dated and signed by the Veteran in May 2006). The Veteran maintains that he received treatment for his facial injuries at the Fort Benning Army Hospital, Fort Benning, Georgia. In its September 2009 decision, the Board denied the claim for service connection for left eye glaucoma finding that there was no medical evidence linking his current disability to his period of active military service. In reaching its decision, the Board found that aside from an October 1958 sick call report, the remainder of the Veteran's service treatment records were unavailable because they had been destroyed by a fire at the National Personnel Records Center. ((See September 2009 Board decision, page (pg.) 4)). The Court's September 2010 Order and Joint Motion for Remand provided that in its September 2009 decision, the Board violated its duty to assist the Veteran under the VCAA because they failed to make reasonable efforts to obtain records of the Veteran's hospitalization at Fort Benning Army Hospital (See September 2010 Joint Motion, pg. 3). Accordingly, the case is REMANDED to the RO&IC/AMC for the following action: 1. The RO&IC/AMC should undertake additional efforts to obtain any outstanding hospitalization and/or treatment of the Veteran, [redacted], [redacted], Company B. 3d Medical Battalion, 3d Infantry Division, APO 162, US Forces, from Fort Benning Army Hospital, Fort Benning, Georgia, dated from November 1957 to January 1958. The RO/AMC's efforts should include, but are not limited to, requesting assistance from the appropriate custodian of such records including the National Personnel Records Center and/or any other appropriate agency. 2. The RO&IC/AMC should document its efforts to locate the records referenced above until such records are located or until it is determined that it is reasonably certain that such records do not exist and that further efforts to obtain these records would be futile. The Veteran should be notified of the RO&IC/AMC's attempts to locate these medical records, as well as any further actions to be taken. See 38 C.F.R § 3.159(e). 3. If and only if evidence is received showing that the Veteran received in-service clinical treatment of the left eye, should the RO&IC/AMC afford him a VA examination to determine the etiology of any current left eye glaucoma. If such an examination is conducted, the claims file, and a copy of this remand, must be reviewed by the examiner in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated. The examiner is requested to provide an opinion as to whether any currently diagnosed left eye glaucoma is etiologically related to military service, to include in-service facial trauma. 4. If an examination is scheduled, the RO&IC/AMC must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. After the above has been completed, the RO&IC/AMC should review the claims file and ensure that all of the development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the reviewer report and examination report, if any. If any report does not include all test reports, special studies or fully detailed descriptions of all pathology or adequate responses to the specific opinions requested, the report must be returned to the providing health care provider for corrective action. 6. Thereafter, the RO&IC/AMC should re- adjudicate the Veteran's claim for service connection for left eye glaucoma in light of all of the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case ("SSOC"). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO&IC. 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). _________________________________________________ Vito A. Clementi 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).