Citation Nr: 1237409 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 09-39 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an eye disorder, to include residuals of a retina tear, loss of vision, and in-service eye infections. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran, Veteran's spouse ATTORNEY FOR THE BOARD K. Millikan, Counsel INTRODUCTION The Veteran served on active military duty from December 2003, to January 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The issue of entitlement to an increased evaluation for service-connected migraine type headaches has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to obtain an adequate examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2011). In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997). Congenital or developmental defects, including refractive error, are not considered diseases or injuries for VA purposes, and provide no basis for service connection. 38 C.F.R. §§ 3.303(c), 4.9; Beno v. Principi, 3 Vet. App. 439, 441 (1992). In the absence of a superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia, and astigmatism, even if visual acuity decreased in service, as those are not a diseases or injuries within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9. Thus, VA regulations specifically prohibit service connection for refractive errors of the eyes unless the defect was subjected to a superimposed disease or injury that created additional disability. VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45,711 (1990). The Veteran alleges that her current eye infections, eye discharge, a feeling of fullness or heaviness, eye pain, and blurred vision are a result of her in-service visual problems. At the 2012 Board hearing and in various submission of record, she has reported eye discharge, recurrent eye infections, a feeling of heaviness or fullness of the eyes, and eye pain. Service treatment records (STRs) from 2004 and 2005 indicate that in November 2004, the Veteran was evacuated from Iraq for evaluation of her vision. She reported decreased visual acuity for unknown reasons and eye discharge. STRs noted low vision, bilateral visual impairment, refractive error, myopia, and astigmatism. A June 2005 line of duty determination notes that the Veteran suffered visual problems beginning in February 2004, during her active duty service. Private medical records from 2005 and 2006 indicate conjunctivitis, left eye hole in retina, refractive error, myopia, right eye round hole of retina without detachment, and peripheral retinal degeneration lattice. An April 2006 private record noted small retinal holes, flashes, and floaters of the bilateral eyes. June 2006 private records noted the Veteran was status-post laser to the lattice holes. A June 2006 VA eye examination was conducted upon review of the claims file. The Veteran reported eye discharge and blurry vision. The examiner stated that the Veteran did not report ocular pain. The examiner diagnosed right eye retinal tear, status-post laser, and right eye scotoma. The examiner stated that the Veteran's refractive error was the cause of her blurred vision, that the scotoma was likely related to the laser for retinal tear, and that there was suspicion of glaucoma. The Board finds that these VA examiner's etiology opinions are inadequate. First, the examiner did not address the Veteran's alleged recurrent eye infections, eye discharge, eye pain, or left eye retinal hole. Second, the examiner did not address whether the right eye retinal tear or suspicion of glaucoma was the result of the in-service visual problems. Third, the examiner did not comprehensively address the residuals of the in-service visual problems. Fourth, the examiner did not provide an opinion regarding any aggravation of refractive error of the eyes. This must be accomplished on remand. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the paper or electronic claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of her eye disorders. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. First, the examiner must indicate all currently present diagnoses of the eyes, to include whether each of the following previously-diagnosed disorders are present: bilateral refractive error/myopia; bilateral astigmatism; right eye retinal tear status-post laser; left eye retinal hole; eye infections/conjunctivitis; and right eye scotoma. If any of the above are not noted to be present, the examiner must address that issue. Second, the examiner must provide an opinion regarding each currently diagnosed eye disorder, in light of the examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the disorder was caused or aggravated by active military service. The examiner must specifically address the visual problems as indicated in the STRs, to include the 2005 line of duty determination indicating injury in 2004 and the diagnoses of low vision, bilateral visual impairment, refractive error, myopia, and astigmatism. Third, the examiner must provide an opinion regarding refractive error of the eyes and any other congenital or development defect, in light of the examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the disorder was aggravated by military service; specifically, whether there is any superimposed disease or injury that creates additional disability. 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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. 2011). _________________________________________________ MARJORIE A. AUER 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) (2011).