Citation Nr: 1300894 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 10-10 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for an eye disorder. 2. Entitlement to service connection for swelling of the legs, feet, and ankles. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Traskey, Counsel INTRODUCTION The Veteran had active duty training from September 1984 to January 1985 and active service from May 2005 to August 2006. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of June 2007 and April 2009 by a Department of Veterans Affairs (VA) Regional Office (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is entitled to service connection for an eye disorder and for a disability manifested by swelling of the legs, feet, and ankles. In particular, the Veteran asserts that he sustained these injuries in December 2005 after he was involved in a motor vehicle accident / vehicle borne improvised explosive device incident while stationed in Mosul, Iraq. Service treatment records, witness statements, aeromedical evacuation reports, and a line of duty determination associated with the claims file confirmed the occurrence of and the Veteran's involvement in this incident on December 22, 2005. Treatment records stemming from this incident showed that the Veteran reported subjective complaints of lacerations to the forehead, left thumb, and right forearm, as well as right knee pain. A physical examination showed evidence of a closed head injury with scalp laceration, sore left thumb, right-sided rib pain, and right knee effusion. The diagnosis was open wound on the face, contusions with intact skin surface, concussion with no loss of consciousness, and multiple abrasions or friction burns. Upon discharge from this period of hospitalization, the Veteran's subjective complaints of headache improved and he was confined to quarters for 72 hours. Service personnel records also revealed that the Veteran was awarded a Purple Heart Medal and Combat Action Badge, among other decorations. The Veteran returned to sick call in April 2006 for replacement reading glasses. It was noted that the Veteran had trouble reading during the day, intermittent headaches, and decreasing visual acuity, particularly at night. The diagnosis was presbyopia and meibomitis. Post-service treatment records, lay statements, buddy statements, and hearing testimony reflected continued subjective complaints related to decreased visual acuity and swelling of the legs, feet, and ankles (which the Veteran and other lay persons attributed to the December 2005 in-service incident). The Veteran was afforded a VA eye examination in January 2007. The results of the examination showed evidence of decreased visual acuity, which according to the examiner, resulted from the normal aging process. Presbyopia was diagnosed in a January 2008 VA ophthalmology consultation. The Board is aware that congenital or developmental defects, refractive errors of the eye, personality disorders, and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c) (2012). In the absence of superimposed disease or injury, service connection may not be allowed for refractive errors of the eye even if visual acuity decreased in service. 38 C.F.R. §§ 3.303(c), 4.9 (2012); see also, VAOPGCPREC 82-90, 56 Fed. Reg. 45711 (1990). The VA Adjudication Procedure Manual, M21-1MR, provides guidance on evaluating conditions of the organs of special sense (i.e., the eyes). Refractive errors are defined to include astigmatism, myopia, hyperopia, and presbyopia. See M21-1MR. In light of the Veteran's subjective complaints of vision problems in service following the December 2005 incident and the diagnoses of presbyopia and meibomitis, a new VA examination is needed on remand to determine whether the Veteran sustained a superimposed disease or injury in service which resulted in additional disability. The Veteran must also be afforded a VA examination to determine whether he has a disability manifested by swelling of the legs, feet, and ankles, and if so, whether this disability is related to his period of active duty service or any incident therein. The record also reflects that the Veteran is service-connected for several disabilities, including traumatic brain injury with cognitive impairment and headaches; posttraumatic stress disorder; right knee degenerative joint disease; right knee instability; high blood pressure with headaches; bilateral hallux valgus; chronic lumbosacral spine strain; and hypertension, among other disabilities. On remand, the RO must provide the Veteran with the information and evidence needed to substantiate the current service connection claims, to include as secondary to a service-connected disability. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of these claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must obtain all relevant VA medical records pertaining to the Veteran from March 2009. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) explain that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The RO must contact the Veteran and advise him of the information and evidence needed to substantiate the service connection claims for an eye disorder and swelling of the legs, feet, and ankles, to include as secondary to a service-connected disability. 3. After the above development is completed, the Veteran must be afforded a VA examination to determine whether the Veteran's claimed eye disorder is related to his military service or any incident therein. In providing the opinion, the examiner is reminded that VA laws and regulations do not preclude service connection for a post-service disability where a disability was not shown at the time of separation from service. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. All indicated testing must be conducted. Following a review of the evidence of record, an examination of the Veteran, and with consideration of the Veteran's statements and any lay statements of record, the examiner must express an opinion as to whether there is a currently diagnosed eye disorder (other than a refractive error), and if so, whether it is related to his period of active service or any incident therein. In the alternative and with respect to any diagnosed refractive error (to include presbyopia), the examiner must express an opinion as to whether there was a superimposed injury or disease in service that resulted in additional disability. In reaching this conclusion, the examiner must discuss the significance, if any, of the December 2005 in-service incident. Additionally, the examiner must provide an opinion as to whether any currently diagnosed eye disorder is proximately due to or aggravated by a service-connected disability. Please note: The Veteran is service-connected for the following disabilities, among others: traumatic brain injury with cognitive impairment and headaches; posttraumatic stress disorder; high blood pressure with headaches; and hypertension. The examiner must provide an opinion with respect to each of these service-connected disabilities. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. The Veteran must be afforded a VA examination to determine whether he has a disability manifested by swelling of the legs, feet, and ankles, and if so, whether it is related to his military service or any incident therein. In providing the opinion, the examiner is reminded that VA laws and regulations do not preclude service connection for a post-service disability where a disability was not shown at the time of separation from service. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. All indicated testing must be conducted. Following a review of the evidence of record, an examination of the Veteran, and with consideration of the Veteran's statements and any lay statements of record, the examiner must express an opinion as to whether the Veteran has a disability manifested by swelling of the legs, feet, and ankles, and if so, whether it is related to his period of active service or any incident therein. In reaching this conclusion, the examiner must discuss the significance, if any, of the December 2005 in-service incident. Additionally, the examiner must provide an opinion as to whether a disability manifested by swelling of the legs, feet, and ankles is proximately due to or aggravated by a service-connected disability. Please note: The Veteran is service-connected for the following disabilities, among others: traumatic brain injury with cognitive impairment and headaches; posttraumatic stress disorder; right knee degenerative joint disease; right knee instability; high blood pressure with headaches; bilateral hallux valgus; chronic lumbosacral spine strain; and hypertension. The examiner must provide an opinion with respect to each of these service-connected disabilities. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 5. The RO must notify the Veteran that it is his responsibility to report for the scheduled 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 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After the requested examination has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. The examination report must be returned to the examiner if it is deficient in any manner and the RO must implement corrective procedures at once. 7. Thereafter, the RO must ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the claims. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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) (2012).