Citation Nr: 1115296 Decision Date: 04/19/11 Archive Date: 05/04/11 DOCKET NO. 00-24 515A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for vision problems. 2. Entitlement to service connection for chemical sensitivity. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from August 1974 to August 1978, from September 1990 to June 1991 (in Southwest Asia from November 18, 1990, to May 14, 1991), and from December 2002 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from adverse rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In May 2003 and June 2007, the Board remanded the case to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for further development. Thereafter, in a September 2009 rating decision, service connection was granted for cubital tunnel syndrome of both elbows, fibromyalgia, chronic lumbar strain with degenerative disc disease, tendonitis of the left ankle, and degenerative joint disease of the knees. In an August 2010 rating decision, service connection for a cognitive disorder, not otherwise specified, with major depressive disorder and posttraumatic stress disorder, was granted. In addition, the Veteran's service-connected fibromyalgia was recharacterized to include sleep disturbance. Therefore, as the issues addressed in the Board's prior remands, other than those noted on the title page of this decision, were granted in full, they are no longer in appellate status. The issue of service connection for vision problems other than vitreal floaters and chemical sensitivity is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, vitreal floaters began during his last period of service. CONCLUSION OF LAW Service connection for vitreal floaters is warranted. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for vitreal floaters herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in- service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Records dated prior to the Veteran's last period of service fail to reflect any complaints or diagnoses of vitreal floaters. On the September 2002 Report of Medical Assessment, the examiner indicated that there were no current complaints. The Veteran indicated that his only current medical problems involved his right knee and a root canal (which had not been completed). April 2003 records show that the Veteran had no prior ocular history. His distant vision on the right was 30/25 and on the left was 20/20. It was indicated that the Veteran had problems with allergies and his eyes itched all the time. In December 2003, the Veteran underwent an ophthalmological examination which noted that he was being evaluated for refractive surgery. The Veteran reported having dry eyes and that he used Visine intermittently. His vision on the left of 20/20 and on the right of 20/20. In November 2005, the eyes were noted to be normal. In March 2006, it was noted that the Veteran had experienced increased eye irritations. The service treatment records then show that the Veteran underwent eye surgery in September 2006 for treatment of myopia and astigmatism. His preoperative examination revealed that his uncorrected vision in both eyes was 20/200, his current vision with prescription was 20/40 in both eyes, with double vision in both eyes. The Veteran's postoperative examination revealed complaints of slight discomfort in the right eye which felt "gritty" in the morning, but was improving. The Veteran was happy with his monovision, currently. In the right eye, his uncorrected vision was 20/20. In the left eye, his uncorrected vision was 20/80 negative one, with double vision. The impression was normal postoperative recovery and exam, that the Veteran was compliant with his prescribed medications, that there was no adverse event to report at this visit, and that the Veteran was fit for full duty at this time. A subsequent medical examination revealed right eye distant vision of 20/20 and near vision of 20/200 and left eye distant vision of 20/150 and near vision of 20/20. The Veteran reported that he needed glasses to see distances and had dry eye on the right and used artificial tears. In July 2010, the Veteran was afforded a VA examination. The claims file was reviewed. At that time, the Veteran reported that he had headaches and trouble focusing in addition to having floaters in his eyes. He related that these problems were due to his in-service eye surgery, which, he asserted, the military directed him to have done. The Veteran explained that he was naturally near sighted a bit in each eye. He had the laser vision correction done to the right eye only in an attempt to correct that eye so that he could function using the right eye primarily for near vision. The examiner noted that the Veteran had informed consent of the procedure as shown on his signed form in the claims file. In addition, the examiner noted that the Veteran appeared to only have the right eye done, per his option, for monovision affect. Physical examination was performed which yielded diagnoses of slight anisometropia with the right eye, and showing a very low hyperopic refraction in the left eye; vitreal floaters in each eye; and status post PRK (laser surgery) in the right eye with good vision. His vision was 20/13 uncorrected in the right eye on far vision and 20/100 on near. Corrected was 20/13 on far and 20/50 on near. His vision was 20/13 uncorrected in the left eye on far vision and 20/20 on near. Corrected was 20/13 on far and 20/20 on near. The examiner indicated that the Veteran's monovision was due to the surgery and was the intended effect of the surgery. He opined that the Veteran's floaters were not caused by his surgery because he had comparable floaters in both eyes, including the eye which did not have surgery. A review of the record clearly shows that the Veteran underwent elective eye surgery during his last period of service. The July 2010 VA examiner indicated that the surgery, and the numerous possible complications, did not result in the vitreal floaters. However, the Veteran is competent to report having floaters. In affording the Veteran the benefit of the doubt, the Board accepts that they were present since the surgery. In addition, vitreal floaters were initially noted, per the competent lay evidence, to have been present during the Veteran's last period of service. In this regard, the Board notes that the clinical records dated prior to that time were negative for vitreal floaters. Accordingly, service connection for vitreal floaters is warranted. However, as additional development is necessary with respect to the Veteran's claim of whether service connection is warranted for vision problems other than vitreal floaters, such issue is addressed in the Remand portion of the decision. ORDER Service connection for vitreal floaters is granted. REMAND Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims of entitlement to service connection for vision problems other than vitreal floaters and chemical sensitivity so that he is afforded every possible consideration. Relevant to both claims, the Board that a remand is necessary in order to obtain outstanding records from the Social Security Administration (SSA). The Board notes that, subsequent to the May 2003 remand directives, such records were obtained; however, at such time, the Veteran had been denied SSA disability benefits. In August 2010, the Veteran submitted a letter from SSA showing that he was in receipt of disability benefits as of December 2007. Additionally, at various VA examinations conducted in 2009, he reported that he had been disabled due to numerous disabilities and was in receipt of SSA disability benefits. As such, a remand is necessary in order to obtain any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). Pertinent to the Veteran's claim of entitlement to service connection for chemical sensitivity, the Office of the Secretary of Defense has confirmed that the Veteran's unit was exposed to low levels of a chemical agent(s) during service in the Gulf War. Also, the Veteran's diagnoses of various psychiatric disabilities have been etiologically linked to this exposure to toxic chemicals. The Veteran asserts that he has chemical sensitivity due to the in-service chemical exposure. Although the Veteran is certainly competent to report certain symptoms, it is unclear what the current manifestations are with regard to chemical exposure. This matter has not been specifically addressed by a VA examiner, although the Veteran has been examined numerous times. Accordingly, the Veteran should be afforded a VA examination to determine if he has "chemical sensitivity," what that entails, and if it is etiologically related to confirmed in-service chemical exposure. Accordingly, the case is REMANDED for the following action: 1. Any determination pertinent to the Veteran's claim for SSA benefits that was granted, effective December 2007, as well as any medical records relied upon concerning that claim, should be obtained from SSA and associated with the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current "chemical sensitivity" disability. Any indicated tests should be accomplished. The examiner should review the claims folder prior to examination. The examiner should inquiry as to what are the Veteran's claimed symptoms associated with his chemical sensitivity and document the response. Following any appropriate and necessary tests, the examiner should determine if the Veteran has "chemical sensitivity" and what that entails. Also, the examiner should provide an opinion as to whether it is at least as likely as not, that any current "chemical sensitivity" disability had its clinical onset during service or is related to any in-service disease, event, or injury, to include confirmed in-service chemical exposure. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of his chemical sensitivity and the continuity of symptomatology. A complete rationale for any opinion expressed should be included in the examination report. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ A. JAEGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs