Citation Nr: 1311490 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-29 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a right eye disability, to include a macular scar and macular degeneration. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active military service from May 1966 to June 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. On November 18, 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge, sitting at the RO. The Veteran was also afforded a hearing before a Decision Review Officer in November 2009. Transcripts of both hearings have been associated with the claims file. The Board notes that the Veteran originally filed a claim of service connection for a right eye disability in January 1997. In October 1997, the RO denied that claim as not well grounded because there was no evidence of treatment in service for a chronic disability of the right eye, other than for refractive error. The Veteran did not pursue an appeal of that denial. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (1996). Consequently, VA would ordinarily require the receipt of new and material evidence to reopen the previously denied claim. 38 C.F.R. § 3.156 (2012). In this case, however, it was specifically noted that the Veteran's complete service treatment records (STRs) had not been associated with the claims folder at the time of the October 1997 decision. In December 2007, the Veteran again requested VA disability compensation for his right eye vision loss, which he asserted was directly related to an incident that occurred while serving on active duty. Thereafter, the RO again sought to obtain the Veteran's complete STRs. In response, certain STRs, to include the Veteran's entrance examination report, which was not previously contained amongst the STRs of record at the time of the October 1997 decision, were supplied. Applicable regulations provide that if, after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first adjudicated the claim, VA will reconsider the claim notwithstanding the provisions of 38 C.F.R. § 3.156(a). 38 C.F.R. § 3.156(c)(1)(i)-(iii). Accordingly, because the evidence submitted after the Veteran's claim was initially denied in October 1997 includes copies of relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, the Board will, as did the RO in its April 2008 decision, reconsider the Veteran's claim de novo. 38 C.F.R. § 3.156(c). 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 Under 38 U.S.C.A § 5103A, VA must "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary." 38 U.S.C.A § 5103A(a)(1) (West 2002); see 38 C.F.R. § 3.159(c) (2012) (obligating VA to obtain relevant records from Federal department or agency). This duty to assist includes making "reasonable efforts to obtain relevant records (including private records)," as long as the claimant "adequately identifies" those records and authorizes the Secretary to obtain them. 38 U.S.C.A § 5103A(b)(1); Loving v. Nicholson, 19 Vet. App. 96, 101-02 (2005). As part of that assistance, "whenever the Secretary attempts to obtain records from a Federal department or agency . . . the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." 38 U.S.C.A. § 5103(b)(3). Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(e) (2012). Further, VA is required to notify a claimant that it has made reasonable efforts to obtain his or her Federal records but was either unable to obtain them or it was reasonably certain that any additional efforts to obtain such records would be futile. Id. The notice must specifically contain the following information: "(i) The identity of the records VA was unable to obtain; (ii)[a]n explanation of the efforts VA made to obtain the records; (iii)[a] description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and (iv)[a] notice that the claimant is ultimately responsible for providing the evidence." Id.; see 38 U.S.C. § 5103A(b)(2). As noted in the introduction, the STRs initially associated with the record were incomplete. In February 2008, the RO again requested from the National Personnel Records Center (NPRC) the Veteran's complete medical and dental record. The NPRC responded that same month by stating: "The personnel record was retired to Code 13, the health record was not. See PIES help regarding service medical records. Mailing the few pages of STRs taken from microfiche in the record." No further efforts to obtain the Veteran's STRs were undertaken. Given the response from the NPRC, the Board cannot be certain that additional STRs do not exist or that further efforts to obtain them would be futile. See 38 U.S.C.A. § 5103(b)(3); 38 C.F.R. § 3.159(c)(2). Indeed, it is unclear from the statement referencing "PIES help" whether perhaps further information was necessary in order to conduct a thorough search for such records. Notably, no formal final of unavailability has been made. Thus, because it has not been properly determined that the Veteran's remaining STRs are unattainable or nonexistent, and because they may contain information relevant to his claim for service connection for a right eye disability, the Board finds that the matter must be remanded for the agency of original jurisdiction (AOJ) to again attempt to obtain these potentially relevant records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010) ("[I]f there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records"). If, on remand, it is determined that additional STRs are indeed nonexistent or unattainable, the Veteran must be notified of that determination in compliance with 38 C.F.R. § 3.159(e). Regarding his claim of service connection for a right eye disability, the Board finds it necessary to obtain a medical examination and opinion in connection with that claim, as the evidence of record is insufficient to render a decision on the claim. See 38 U.S.C.A. § 5103A(d) (West 2002) (VA's duty to assist also includes the duty to provide a medical examination or obtain a medical opinion "when such an examination or opinion is necessary to make a decision on the claim"); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Notably, in pursuing a claim for VA disability compensation for a right eye disability, the Veteran has asserted that he experienced a sudden loss of vision in his right eye while in service in 1984, which has persisted since that time. Current treatment record show a scar in the macula of right eye, cause unknown, an absolute scotoma in the right eye, and a pale optic nerve consistent with a diagnosis of optic atrophy. Private treatment records also show trace optic nerve pallor, right eye, out of proportion to cupping, possibly the result of an old injury or of ischemia. Although the Veteran's STRs do not indicate any specific injury to the eye, and the Veteran does not report any specific injury, they do show that the Veteran was prescribed glasses. While refractive errors of the eye are not diseases or injuries for disability compensation purposes, service connection may be granted if the evidence shows aggravation during service on account of a superimposed disease or injury. See Carpenter v. Brown, 8 Vet. App, 240 (1995); 38 C.F.R. § 3.303(c) (2012) ("Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation."); VAOPGCPREC 67-90. Given the evidence of record, the Board finds that the instant case presents medical questions necessitating a VA medical examination and opinion to answer the questions set forth in the remand directives below. See 38 U.S.C.A. § 5103A(d); Colvin, supra. Accordingly, the case is REMANDED to the AOJ for the following action: 1. The AOJ must seek to obtain the Veteran's complete service treatment records, to specifically include his separation examination report and accompanying report of medical history. All attempts to obtain this data, and any responses received, should be documented in the claims folder. If it is determined that additional service treatment records are unavailable or unattainable, the Veteran must be notified in accordance with the procedures set forth in 38 C.F.R. § 3.159(e). 2. A review of the record shows that a previous request for records from private physician Dr. J.K., was not responded to. The AOJ should contact the Veteran and inform him that records from Dr. J.K. were requested in April 1997, but that no response was received and that ultimately it is his responsibility for providing private treatment records to VA. 3. After all available service treatment records have been associated with the claims file, the Veteran should be afforded a VA examination in connection with his claim of service connection for a right eye disability. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination and all necessary tests and studies should be conducted. The examiner should take a detailed history from the Veteran regarding his claimed right eye disability and provide the following information/opinions: (a) The examiner should determine the nature of and provide diagnoses for all current right-eye disabilities. (b) For any currently diagnosed disability of the right eye, the examiner should state whether or not any such disability is a refractive error of the eye or a congenital or developmental defect. (c) As to any diagnosed disability of the right eye determined to be a refractive error of the eye or a congenital or developmental defect, the examiner should opine as to (1) whether it as likely as not (50 percent probability or more) that any disease or injury was superimposed on that disability during service and (2) whether it was at least as likely as not that any such eye disability was aggravated (increased in severity beyond the natural progression of the disease) during service. (d) As to any diagnosed disability of the right eye determined NOT to be a refractive error of the eye or a congenital or developmental defect, the examiner should opine as to whether it is at least as likely as not that any such disability of the right eye is directly traceable to the Veteran's military service. In offering any opinion, the examiner must consider the Veteran's lay statements regarding the occurrence of right eye vision loss in service and the continuity of symptomatology. Regardless of whether the examiner's opinion as to any question is favorable or negative, the examiner must provide support for his/her opinion(s). This includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming the opinion. A complete rationale for all opinions is requested. If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. If the examiner determines that he/she cannot provide an opinion on an issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definite opinion can be obtained.) 4. The AOJ must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 5. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issue of entitlement to service connection for a right eye disability, to include a macular scar and macular degeneration. If the benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. No action is required of the veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). Thereafter, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (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). ______________________________________________ J. A. MARKEY 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 Court. 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).