Citation Nr: 1308790 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 10-11 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for macular degeneration secondary to service-connected diabetes mellitus type II with mild retinopathy of the left eye. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from November 1957 to June 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In August 2010, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript is of record. 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 Reasons for Remand-to obtain VA records and to schedule a VA examination The Veteran claims that his currently diagnosed macular degeneration is due to or aggravated by his service-connected diabetes mellitus. A review of the record reveals that several of the Veteran's VA medical records have not been associated with the claims file. As was pointed out at the Veteran's hearing before the Board in August 2010, copies of eye examinations referred to in the February 2010 statement of the case and dated on February 5, 2009 and on July 6, 2009 are not in the file and are not available in Virtual VA. Because these VA records are applicable to the Veteran's claim these records must be obtained and associated with the claims file. 38 C.F.R. § 3.159(c)(1) (2012; Bell v. Derwinski, 2 Vet. App. 611 (1992). As noted above, the reports of VA examinations noted in the statement of the case are not in the file. The February 2010 statement of the case indicates that the evidence includes an opinion that the macular degeneration is not due to his diabetes mellitus; however there is no reference as to whether there was an opinion regarding whether the disorder is aggravated by the Veteran's diabetes mellitus and the Veteran indicated at his hearing before the Board that this is a part of his contentions. To ensure that there is complete information to make a determination in this claim, if necessary, the Veteran should be scheduled for a VA examination to obtain complete nexus opinion. The appellant is hereby notified that it is his responsibility to report for any examination that may be 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, the case is REMANDED for the following action: 1. Obtain and associate with the claims file copies of all VA medical records for the Veteran dated from January 2009. This will include copies of all VA examination reports and specifically the February 5, 2009 and July 6, 2009 reports. If any records are unavailable, a determination as to whether further efforts would be futile should be made and the Veteran must be informed of the inability to obtain the records. 2. If upon review of the VA records, it is determined that the opinion offered is not adequate to determine if the Veteran's currently diagnosed macular degeneration is due to or aggravated by his service-connected diabetes mellitus, then schedule the Veteran for a VA eye examination. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. After examining the Veteran, considering his contentions, and completing any necessary tests, the examiner must offer an opinion with complete rationale as to whether it is at least as likely as not (a 50 percent possibility or greater) that the currently diagnosed macular degeneration is due to or aggravated by the service-connected diabetes mellitus. In rendering the opinion, the examiner should not resort to mere speculation, but rather should consider that the phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale for all opinions must be provided as well as a discussion of the facts and medical principles involved. 3. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 38 C.F.R. § 4.2 (2012); See also Stegall v. West, 11 Vet. App. 268 (1998). 4. Following completion of the above, the claim for should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The claim should be returned to the Board as warranted. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).