Citation Nr: 1304082 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 10-33 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a left eye disability (to include blindness). REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, in which the RO found that new and material evidence had not been received to reopen a claim for service connection for left eye disability. In an April 2011 Supplemental Statement of the Case, the RO reopened the claim, but denied entitlement to service connection on the merits. The Veteran provided testimony at an October 2011 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In a March 2012 decision, the Board found that reopening of the claim for service connection for left eye disability was warranted, but denied the reopened claim on the merits. A September 2012 Order of the Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (Joint Motion) and vacated the Board's March 2012 decision to the extent it denied service connection for left eye disability. The Court returned the case to the Board for further development and adjudication. The below action is directed in view of the Court's Order. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND In the parties' Joint Motion, granted by the Court in September 2012, it was agreed that further development of this matter was required. The Joint Motion indicated that the November 2010 VA examiner's medical opinion obtained in this matter was not adequate, as the examination report contained inadequate clinical findings and the examiner provided an inadequate explanation for his conclusion that a medical opinion could not be rendered without resort to mere speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2009) (examiner should clearly identify precisely what facts cannot be determined; for example, it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes). The Joint Motion also expressed concerns as to the Board's findings pertaining to whether the Veteran was credible in his reporting of an in-service eye injury and his symptoms of eye disability from that time forward. As that the application of specialized medical knowledge may assist in evaluating the plausibility of the Veteran's lay assertions, the Board will request the examiner to take a complete history from the Veteran and state whether there is a medical basis to support or doubt the history related by the Veteran. The Joint motion further states that, in light of the fact that the Veteran's service treatment records have been lost or destroyed, VA should attempt to obtain morning or other service reports from the United States Marine Corps (USMC), which may contain evidence of the occurrence and severity of the Veteran's claimed in-service left eye injury. See 38 U.S.C.A. § 5103A(a)-(c); Dixon v. Derwinski, 3 Vet. App. 261 (1992) (heightened duty to assist where service treatment records have been lost or destroyed). Also, in a December 2012 statement from the Veteran's representative, the representative requested that VA seek to assist the Veteran in locating L.L., a fellow serviceman whom the Veteran contends would help corroborate both the claimed in-service eye injury and that the Veteran wore an eye patch for some period after the eye injury. Id. Further, on remand, the RO should seek to obtain any additional potentially relevant treatment records. Id. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify all records of VA and non-VA health care providers who have treated him for left eye disability from active service forward but which may not have previously been received for association with his VA claims file. After obtaining any appropriate authorizations for release of medical information, the RO must seek to obtain any potentially relevant and available records that have not been previously received from each health care provider the Veteran identifies. The Veteran must also be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them to the RO. 2. In light of the fact that the Veteran's service treatment records have been lost or destroyed, contact the Veteran and his representative to determine what types of assistance they seek from VA in attempting to locate fellow serviceman L.L. and obtaining relevant lay recollections from him regarding the occurrence of the Veteran's left eye injury during service and his wearing and eye patch for a period of time thereafter. To the extent the Veteran and his representative provide adequate information to facilitate such assistance and VA is authorized by law and regulation to provide such assistance, seek to assist the Veteran in locating this individual. 3. Contact all necessary sources to seek to obtain morning or other service reports from the USMC, which may contain evidence of the occurrence and severity Veteran's claimed in-service left eye injury. The Veteran maintains that he has current left eye disability as a result of being shot with a blank during boot camp training, and sustaining an injury to the left eye for which he was treated at a base hospital. He asserts that he was rendered totally blind in the left eye and wore an eye patch for a period of time thereafter. In a post service statement he indicated that he was "shot in the eye by a blank in October or November 1973 at Paris Island, South Carolina." 4. Once all available relevant medical records have been received, make arrangements with the appropriate VA medical facility or facilities for the Veteran to be afforded a VA examination by an OPTHALMOLOGIST. The RO should send the claims file to the examiner for review, and the clinician should indicate that the claims file was reviewed. The examiner should be advised that the Veteran maintains that he has current left eye disability as a result of being shot with a blank during boot camp training, and sustaining an injury to the left eye for which he was treated at a base hospital. He asserts that he was rendered totally blind in the left eye and wore an eye patch for a period of time thereafter. In a post service statement he indicated that he was "shot in the eye by a blank in October or November 1973 at Paris Island, South Carolina." The examiner is requested to review a September 1992 Vocational Rehabilitation report which indicates that the Veteran is blind in the left eye due to being shot by a blank in the Marines. This is located with the Veteran's Social Security Administration records, in claims file volume 5. The examiner is requested to review the hearing transcript dated in October 2011, volume 5. In essence, it was reported that there had been an in-service injury (shot with a blank), for which he was treated and the eye was patched. The vision cleared up for a while, but slowly, gradually got worse. There was then a guess that there was blindness 10 to 12 years after service. The examiner is requested to review a detailed report of examination by a VA optometrist in May 2010, which includes a history of the Veteran having been shot by a blank in the left eye in 1973. This is located in claims file volume 3. The examiner should take a complete history from the Veteran as to his in-service eye injury and his history of left eye disability from that time forward. IF THERE IS A MEDICAL BASIS TO SUPPORT OR DOUBT THE HISTORY PROVIDED BY THE VETERAN, THE EXAMINER MUST STATE THIS, WITH A FULLY REASONED EXPLANATION. The examiner should conduct a complete examination of the Veteran's left eye and provide a diagnosis for each disorder of the Veteran's left eye found upon examination. For each diagnosed disorder, the examiner should provide an opinion as to whether it is at least as likely as not (whether there is a 50 percent or greater probability) that the disorder began during service or is otherwise related to any incident of service. In particular, is the current finding consistent with trauma? The examiner should be referenced to a November 2010 VA examination report regarding the Veteran's left eye. On appeal to the Court of Appeals for Veterans Claims that examination report was found to contain an insufficient explanation as to why an opinion could not be rendered without resort to mere speculation, and to be unclear as to whether the Veteran is actually blind in his left eye or to what extent he has loss of vision in his left eye. As a result, the examiner should provide an opinion as to whether the Veteran is actually blind in his left eye or to what extent he has loss of vision in his left eye. Additionally, IF ANY REQUESTED OPINION CANNOT BE PROVIDED WITHOUT RESORT TO MERE SPECULATION, THE EXAMINER SHOULD SO STATE. HOWEVER, ANY SUCH DETERMINATION SHOULD BE SUPPORTED BY A FULLY REASONED EXPLANATION. It must be clear that the examiner has indeed considered all procurable and assembled data, by obtaining all tests and records that might reasonably illuminate the medical analysis. To the extent reference to medical treatises or studies may be helpful, this should be accomplished. The examiner should clearly identify precisely what facts cannot be determined; for example, it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that the claimed in-service injury can possibly cause the claimed condition; or if the actual cause cannot be selected from multiple potential causes. The examiner must explain what facts cannot be determined and why. The examiner should to provide a FULLY REASONED EXPLANATION for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. 5. Readjudicate the issue on appeal. If the benefit sought remains denied, provide the Veteran and his representative a Supplemental Statement of the Case and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. 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 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). _________________________________________________ H. N. SCHWARTZ 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).