Citation Nr: 1306083 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 02-09 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a right eye disability. ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) had active duty for training from June 1979 to August 1979. The Veteran served on active duty from April 1986 to July 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. While this case was in remand status, the Veteran was granted service connection for residuals of head trauma and for a back disorder. Therefore, those issues are no longer on appeal. REMAND The Veteran is seeking service connection for a right eye disorder which he argues is due to an in-service injury. His service treatment records are unavailable, and his claims file has been reconstructed, to the extent possible. He has been granted service connection for headaches and a back disorder due to injuries sustained after falling down a hill. In cases where records once in the hands of the government are lost, there is a heightened obligation to explain the Board's findings and conclusions, and to consider carefully the benefit-of-the-doubt rule. See See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The review of the Veteran's claim has been undertaken with this heightened obligation in mind. Private records show that the Veteran sustained an injury post-service in 1998 after being struck on the head. At that time it was noted that he had unequal pupils because of a previous eye injury and surgery on the right eye. In January 2000, the Veteran's right eye was noted to be injected when his headache on the right side was severe. In March 2000 the Veteran's medical history was noted to be significant for anisocoria which he had since sustaining trauma to the right eye as a child. The Veteran reported that a foreign body was thrown into his right eye at that time, and that the eye injury did require surgery. It was noted that he has had a dilated right pupil ever since that time. In March 2001, it was noted that the Veteran has a history of baseline anisocoria on the right related to eye trauma. In May 2001, it was noted that the Veteran's right eye socket does not close all the way and is irritated when he awakens. A review of the available records shows that in June 2002, a VA examiner stated that the Veteran reported that he fell down a hill during service and injured his right leg, head and right eye. Veterans are presumed to be in sound medical condition at the time of entry into service except for defects actually noted when examined for entry into service. This presumption of soundness can be rebutted by clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2012). A preexisting disease or injury will be considered to have been aggravated by active service where there is an increase in disability during such service, but this presumption of aggravation can be rebutted by clear and unmistakable evidence that the disability was not aggravated by active service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. 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 that certain diseases manifested 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 the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 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 "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran has not been examined by VA regarding the etiology of his right eye complaints. In view of the above, a remand for an examination and an opinion is necessary. The appellant is hereby notified that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain any available, outstanding records pertinent to the claim. 2. Then, afford the Veteran a VA eye examination, to determine the nature and etiology of all right eye pathology present during the period of the claim. The claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders must be made available to and reviewed by the examiner. Based on a review of the Veteran's pertinent history and the examination results, the examiner should identify all acquired right eye disorders that have been present during the period of the claim. With respect to each such disorder, the examiner should answer the following questions. Is there a 50 percent or better probability that the disorder was present during the Veteran's extended period of service and if so, did the disorder clearly and unmistakably exist prior to the Veteran's entrance onto the period of active duty? With respect to any such disorder which the examiner believes existed prior to the veteran's entrance onto active duty, did the disorder clearly and unmistakably undergo no chronic increase in severity during or as a result of service? With respect to any such disorder which the examiner believes was not present during service, is there a 50 percent or better probability that the disorder is etiologically related to the veteran's military service? For purposes of the opinions, the examiner should assume that the Veteran is a reliable historian. The supporting rationale for all opinions expressed must also be provided. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Following completion of the above, the RO or the AMC should review the evidence and determine whether the Veteran's claim may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided the requisite opportunity to respond. The case should then be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is 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). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). _________________________________________________ Shane A. Durkin 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).