Citation Nr: 1317436	
Decision Date: 05/29/13    Archive Date: 06/06/13

DOCKET NO.  10-34 012	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for a right eye disability, claimed as a chemical burn.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel



INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran had active military service from March 1957 to September 1977.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from July and October 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

In April 2012, the Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) via videoconference.  A copy of the hearing transcript is of record and has been reviewed.  During the hearing, the Veteran submitted additional evidence along with a waiver of initial RO consideration. 

The Board will remand the appeal to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required.


REMAND

The Board requires a factually informed, medically competent and fully explained medical opinion to resolve this appeal. The appeal is therefore remanded to the RO/AMC for the following actions:

1. Schedule the Veteran for a VA eye examination, to be conducted by a physician qualified to diagnose and express an opinion on the causes of vision disorders. The following considerations will govern the examination:



a. The claims folder, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. Although the examiner must review the claims folder, the examiner will be advised: 

(1) The Veteran contends that he incurred a right eye vision disability as a result of a 1974, in-service accident where hydraulic fluid spilled into his eye. He reports that although his service treatment records do not reflect this incident, the first aid station at the installation was unable to treat his eye, so he was flown to the emergency room at Carswell Air Force Base where his eye was flushed with milk.  He alleges that after this incident, he perceived that his right eye vision slowly deteriorated over time.  

(2) The Veteran's Report of Separation from the Armed Forces (DD-214) shows that his military occupational specialties were aircraft maintenance technician and flight engineer specialist.  

(3) Although he alleges that he had continuing vision problems "since 1974" (Veteran's statement dated and received in August 2009), there are no medical records indicating treatment or complains until June 1991, when the Veteran was treated by the Eye Clinic of Wichita. In January 1992, he was diagnosed as having glaucoma and later cataracts. He was employed by the Boeing Aircraft Company until 1996. 

(4) The medical evidence of record shows post-service diagnoses of uncontrollable glaucoma, retinal detachment, and eventual blindness of the right eye.  (See 1991 private treatment records, a January 1992 operative report from Cataract Surgery Center; a January 1997 operative report from Bishop Clarkson Memorial Hospital; and a July 2009 VA treatment record).  

(5) The Veteran has submitted letters authored by Joel C. Razook, MD (Opthamology). In substance, Dr. Razook opined that the Veteran lost his right eye vision following a traumatic injury during his military service.  See July 2009 and March 2010 statements.  Other than the Veteran's account and possibly those of several lay witnesses, the basis of Dr. Razook's opinion is unclear - in particular that there is no mention of the incident in the Veteran's service treatment records; and no medical mention of any vision loss until June 1991 (approximately 17 years after the claimed incident and 14 years after he retired from active duty).

(6) Under the law, the Veteran and the lay witnesses are competent to report the occurrence of the in-service incident - although their credibility may be assessed on completion of the directed development. 

(7) However, when those statements are presumed credible at this stage of the appeal, and coupled with the opinion of Dr. Razook, the law requires that a factually informed, medically competent, and fully explained medical be obtained. 

b. After conducting any appropriate physical examinations or clinical studies, the examiner must respond to the following question:

Assuming the credibility of the Veteran's statements and the statements of the lay witnesses as to the incurrence of the 1974 in-service spilling of hydraulic fluid in his eye, did the Veteran incur any vision disability (to include but not limited to glaucoma or cataracts) as a result of the in service incident?

THE EXAMINER IS ADVISED that he or she must provide an explanation for any conclusions reached. The Courts have held that the Board must evaluate any medical opinions by review of multiple factors, including but not limited to whether the examiner: conducted a personal interview of the Veteran and review of the claims folder including electronic "Virtual VA" filings; conducted clinical testing and explained findings, and most importantly whether the examiner fully explained his or her findings and opinion. 

THE EXAMINER IS ALSO ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND OR THAT THE EXAMINER HAS EXPERTISE IN THE SUBJECT MATTER IS NOT ADEQUATE TO FIND THAT THE EXAMINATION IS SUFFICIENT. 

2. Following any appropriate development and receipt of the examiner's opinion, the RO/AMC will review the appeal and if the benefit continues to be denied, a Supplemental Statement of the Case will be issued to the Veteran, and established appellate procedures will follow. 

The Veteran 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).

							(CONTINUED ON NEXT PAGE)







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).



_________________________________________________
Vito A. Clementi
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).



Department of Veterans Affairs