Citation Nr: 1303330 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 12-08 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for loss of eyesight, to include as due to in-service exposure to ionizing radiation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from June 1946 to October 1949. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office in Jackson, Missouri (RO). The claims file is in the jurisdiction of the VA Regional Office in Cheyenne, Wyoming. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Veteran is seeking service connection for loss of eyesight, to include as due to exposure to ionizing radiation during service. Specifically, he alleges that, after observing an A bomb blast (plutonium bomb blast) without protective eyewear, he began losing his eyesight. He reported that he was issued glasses during service. Based upon its review of the Veteran's claims folder, the Board finds there is a further duty assist the Veteran with his claim. The Board acknowledges that, for purposes of entitlement to benefits, the law provides that refractive errors of the eyes are congenital or developmental defects and not disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (2012). In the absence of 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 this is not a disease or injury within the meaning of applicable legislation relating to service connection. Id. Thus, VA regulations specifically prohibit service connection for refractory errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability. See 38 C.F.R. §§ 3.303(c), 4.9; VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury); Sabonis v. Brown, 6 Vet. App. 426 (1994). In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The record reflects that the Veteran's service treatment records have been lost. Nevertheless, the Defense Threat Reduction Agency confirmed that the Veteran was a confirmed participant of U.S. atmospheric nuclear testing and was exposed to ionizing radiation during active duty service. Additionally, the Veteran provided photographs that tend to substantiate his report that he was prescribed eyeglasses during service, as they show that he did not wear eyeglasses prior to service and that he did wear eyeglasses as soon as February 1951, slightly over one year after service discharge. Thus, the Board finds the Veteran's statements that he observed an A bomb blast during service and that he was prescribed eyeglasses during service to be competent and credible statements. The Veteran's post service treatment records reflect diagnoses of and treatment for refractive errors in both eyes. In this case, there is evidence of in-service incurrence of a loss of visual acuity with current diagnoses of refractive errors. Additionally, the Veteran contends that his current loss of visual acuity was caused by a superimposed injury to his eyes which occurred during service by viewing an A bomb blast without protective eyewear. Accordingly, the RO should schedule the Veteran for a VA examination addressing the etiology of any current eye disorder. McLendon, 20 Vet. App. at 83. The VA examiner should specifically opine as to whether the Veteran's current loss of visual acuity was caused by a superimposed disease or injury which occurred during active duty service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. Provide notice to the Veteran of alternative sources for obtaining evidence to support his claim, including VA military files, morning reports, statements from service medical personnel, buddy statements, employment physical examination reports, medical evidence from civilian or private medical providers by whom the Veteran was treated, pharmacy prescription records, etc. Also, notify the Veteran that he may submit additional evidence in support of his claim, to include lay and medical evidence that a current loss of visual acuity is related to his military service or that a loss of visual acuity which is a congenital or developmental defect was subjected to a superimposed disease or injury during service which created additional disability. Based on his response, attempt to procure copies of all records which have not previously been obtained from identified treatment sources. 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) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Afford the Veteran a VA eye examination to determine the nature and etiology of any eye disorder found. The claims file and all electronic records must be made available to and reviewed by the examiner in conjunction with the examination, and the examiner must state that the claims file was reviewed. All necessary special studies or tests must be accomplished. After a thorough review of the Veteran's claims file, to include the Veteran's lay statements, the evidence confirming exposure to ionizing radiation during service, the medical evidence, and a discussion of each, the examiner must state: * Whether it is at least as likely as not that any diagnosed eye disorder is related to the Veteran's active duty service, to include having witnessed the explosion of an A bomb without the use of any protective eyewear? * Whether it is at least as likely as not that any diagnosed eye disorder is related to the Veteran's in-service exposure to ionizing radiation? * If the Veteran is found to have an eye disorder which is a congenital or developmental defect, the report must so state, and also indicate whether or not this congenital or developmental defect was subjected to a superimposed disease or injury during service which created additional disability, as contended by the Veteran. The examiner must consider and address the Veteran's competent and credible lay statements that he observed an A bomb blast during service without the use of protective eyewear and that, soon thereafter, he was prescribed eyeglasses for deteriorating visual acuity. The examiner must provide a comprehensive report including complete rationale for all conclusions reached. If the examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 3. The examination report must be reviewed to ensure that that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 4. The RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that 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 any 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. 5. After completing the above actions, the RO must readjudicate the Veteran's claim on appeal. If the benefit sought remains denied, the RO must provide the Veteran and his representative with a supplemental statement of the case, and provide an opportunity to respond, before the case is returned to the Board. The appellant 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 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. 2012). _________________________________________________ U. R. POWELL 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).