Citation Nr: 1304110 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 03-21 661A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for cataracts, claimed as due to radiation exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active military service from February 1945 to December 1947. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2004 rating decision. The Veteran timely perfected an appeal to the Board. In September 2005, the Veteran offered testimony during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. In September 2006, the Board denied claims for service connection for alkaptonuria, for aortic valve replacement, for hyperlipidemia, for glaucoma, for right knee replacement, for right hip replacement, for left hip replacement, and for arthritis/chrondrocalcinosis, each claimed as due to radiation exposure. At that time, the Board remanded the claim for service connection for cataracts, also claimed as due to radiation exposure, to the Appeals Management Center (AMC) for additional development. In July 2009, the undersigned Veteran's Law Judge granted the Veteran's motion to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2008). In August 2009, the Board again remanded to the RO, via the AMC, the matter of service connection for cataracts, claimed as due to in-service radiation exposure. After accomplishing further action, the RO, via the AMC, continued to deny the claim, and returned this matter to the Board for further appellate consideration. For reasons expressed below, the claim remaining on appeal is, again, being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board again notes (as noted in the August 2009 remand), that, although the Board has denied service connection for alkaptonuria and glaucoma, each claimed as due to radiation exposure, in recent correspondence the Veteran has again referred to these matters. Moreover, in recent November 2012 statement from Dr. A. indicates that he had treated the Veteran since 1989 and that the Veteran had required cataract surgery and surgical trabeculectomies for glaucoma. Dr. A. further stated that "[i]t is quite likely that radiation exposure to the eyes has exacerbated both of these conditions." It thus appears that the Veteran is seeking to reopen his previously-denied claims for service connection for alkaptonuria and for glaucoma, each claimed as due to radiation exposure. However, while these issues have been raised by the record, they have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. REMAND Unfortunately, the Board's review of the claims file reveals that further RO action in this appeal is warranted, even though it will, regrettably, further delay an appellate decision on the matter remaining on appeal. As noted previously, this claim essentially turns on the question of whether the Veteran had in-service radiation exposure, as alleged, and, if so, whether there exists a medical relationship between such exposure and cataracts. On the latter point, evidence has been received from Dr. A. (of Armstrong-Colt-George-Cohen Ophthalmology) who has reported treating the Veteran for many years for ochronosis and significant glaucoma. Dr. A has reported that the Veteran has had laser trabeculoplastines in both eyes, surgical trabeculectomies in both eyes, cataract surgery and "YAG" laser capsulotomies. In January 2004, Dr. A report that the Veteran's glaucoma was fairly well controlled. In a handwritten notation by Dr. A. on an April 2004 RO letter to him, it was written that the Veteran no longer had cataracts. They had been removed but "[t]hey were nuclear cataracts." In an October 2004 letter, Dr. A. stated that the Veteran's "ochronosis" was an unusual hereditary amino acid disorder which had caused a form of glaucoma, for which the Veteran had been treated for years. He had also developed cataracts and required cataract surgery in both eyes in the mid 1990s. "A cataract formation is of course a common aging change, but can also occur secondary to radiation exposure. [sic]." According to Dr. A's letterhead, he is the Chief of Ophthalmology at a local hospital, and listed as a specialist in cataracts, glaucoma and laser surgery. In response to a request from the AMC, in March 2009, the Navy Dosimetry Center indicated that it had no reports of occupational exposure to ionizing radiation pertaining to the Veteran. In the August 2009 remand, the Board pointed out that the Defense Threat Reduction Agency (DTRA provides radiation doses estimates for individuals, such as the Veteran, who were involved in the occupation forces of Nagasaki Thereafter, a May 2010 response from the DTRA reflects that based on a worst case assumption the Veteran's combined external gamma and internal doses to the lens of the eye from inhalation and ingestion of contaminants were as follows: total external gamma dose of 0.031 rem; upper bound total external gamma dose of 0.092 rem; internal committed beta plus gamma dose to the lens of the eye of 0.060 rem; and upper bound committed beta plus gamma dose to the lens of the eye of 0.178 rem. None of the troops participating in the occupation of Japan received a dose from neutron radiation. In January 2012, the VA Director of Compensation and Pension Services referred the case to the Under Secretary of Health, along with a summary of the relevant evidence, for an opinion as to whether it was likely, unlikely, or as likely as not that the Veteran's nuclear cataracts were the result of in-service exposure to ionizing radiation. In February 2012, the VA Co-Director of Environmental Health Programs reviewed the case and reported that the International Commission on Radiological Protection had recently adopted a lowered threshold dose for the formation of cataracts due to radiation exposure. The recently adopted threshold dose for the formation of cataracts was 0.5 Gray (50 rem) to the lens of the eye. Cataracts considered to be radiation induced included the cortical and post subcapsular types. Contrary to Dr. A's statement, nuclear cataract was not caused by radiation exposure. Nuclear sclerotic cataracts were primarily thought to be age-related. The Veteran had nuclear cataracts. His radiation dose to the lens of the eye was about 0.54 percent of the threshold for radiation induced cataracts. Thus, it was opined that it was unlikely that the Veteran's nuclear cataracts could be attributed to in-service radiation exposure. This February 2012 report contains two footnotes citing internet sources as to the effects of radiation. Thereafter, following review of the record, and on the basis of the above, the VA Director of Compensation and Pension Services provided a February 2012 opinion in which he concluded that there was no reasonable possibility that the Veteran's nuclear cataracts were the result of in-service exposure to ionizing radiation. A supplemental statement of the case (SSOC) was sent to the Veteran in October 2012. That SSOC informed him that he had 30 days within which to respond. In response, a letter from Dr. A. was submitted, dated and received in November 2012, which stated that the Veteran had required cataract surgery and surgical trabeculectomies for glaucoma. Dr. A. further stated that "[i]t is quite likely that radiation exposure to the eyes has exacerbated both these conditions." Although this further opinion from Dr. A. is pertinent and relevant to the issue on appeal, the evidence was not accompanied by a signed waiver of initial RO consideration of the evidence. See 38 C.F.R. § 20.1304(c) (2012). Also, in the January 2013 Informal Hearing Presentation ,the Veteran's service representative observed that the Veteran had responded to the October 2012 SSOC, but the service representative did not waive initial RO consideration of this new evidence. As such, the Board has no alternative but to remand this matter for initial RO consideration of the additional evidence received, and for issuance of an SSOC reflecting such consideration. See 38 C.F.R. §§ 19.31, 19.37 (2012) . Prior to such adjudication, the Board finds that Dr. A should be afforded an opportunity to provide clarification of, and a clearly-stated rationale for, his opinion. See 38 U.S.C. §§ 5103A(a), 7104(d)(1) (West Supp. 2002). See also Savage v. Shinseki, 24 Vet. App. 259, 269 (2010) (holding that VA's authority or duty to return inadequate medical examination reports to is not limited to only those reports prepared by VA medical examiners. In particular, Dr. A should be asked to clarify his prior opinion that radiation exposure likely "exacerbated" the Veteran's nuclear cataracts, and to explain how (i.e., the pathological manner or means by which) such may have occurred. Further, to ensure that all due process requirements are met, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the duties imposed by the VCAA. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA (to include obtaining any further opinion, if appropriate) prior to adjudicating the claim on appeal. Accordingly, this matter is hereby is REMANDED for the following action: 1. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. The RO should assist the Veteran in obtaining any additional evidence identified following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. Dr. A. should be contacted and requested to clarify his opinion that radiation exposure likely "exacerbated" the Veteran's nuclear cataracts, and to explain how ( i.e., the pathological manner or means by which) such may have occurred. 4. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted (to include obtaining any further opinion, if appropriate), the RO should adjudicate the claim on appeal in light of all pertinent evidence (particularly, that added to the claims file since the RO's last adjudication of the claim) and legal authority. 5. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an SSOC that includes clear reasons and bases for the determination, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish a further adjudication ; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). The RO is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).