Citation Nr: 1317596 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 10-02 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a left eye retinal detachment. 2. Whether new and material evidence has been received to reopen claims of service connection for bilateral pterygium, corneal astigmatism, and floaters. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1968 to June 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from October 2002 and May 2009 rating decisions of the Denver, Colorado Department of Veterans Affairs (VA) Regional Office (RO). In March 2013, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5013A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claim. See 38 C.F.R. § 3.159 (2012). At the March 2013 videoconference hearing, the Veteran testified that his eye disabilities were sustained in combat, resulting from blast injuries he sustained in Vietnam in May 1969. He stated that in 1998, retinal detachment was diagnosed and a physician indicated it could be due to trauma. He testified that there were outstanding private treatment records which would relate not only his retinal detachment, but also his other claimed eye disabilities, to service. As such records are pertinent evidence, development to secure them is necessary. Additionally, the Veteran's DD-214 shows he was awarded the Purple Heart and Bronze Star Medal with "V" Device. For a Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran is entitled to the relaxed evidentiary standard afforded under 38 U.S.C.A. § 1154(b). However, § 1154 does not create a presumption of service connection for a combat Veteran's alleged disability; such Veteran is still required to meet the evidentiary burdens as to service connection, such as whether there is a current disability or whether there is a nexus to service, both of which require competent medical evidence. Collette v. Brown, 82 F.3d 389, 392 (1996). Regarding the retinal detachment, the Veteran has provided lay statements and testimony indicating that he sustained blast injuries to his eyes in service. A December 1998 private treatment record shows a diagnosis of a left retinal detachment (which was surgically repaired). As stated above, the Veteran has indicated that the outstanding private treatment records provide a nexus between the retinal detachment and injury in service. The low threshold standard as to when a VA nexus examination is necesaary is met and such examination must be scheduled. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Regarding the Veteran's other claimed eye disabilities, further examination is indicated only if identified private treatment records suggest a relationship of such disabilities to service. Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify and provide releases necessary for VA to secure from all providers of private evaluations or treatment he received for the disabilities at issue (records of which are not already associated with the record). In particular, he must identify (and provide releases for records of) the providers who (per his testimony) have related his eye disabilities to service/injury therein. The RO should obtain complete records of all such treatment and evaluation from all sources identified by the Veteran. If any records requested are unavailable, the reason for their unavailability must be explained for the record. 2. The RO should then arrange for the Veteran to be examined by an ophthalmologist to determine the likely etiology of his retinal detachment. The Veteran's entire record, to include this remand (and any private records received pursuant to the request above), must be reviewed by the examiner in conjunction with the examination. Based on a review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: (a) What is the likely etiology for the Veteran's left retinal detachment. Specifically, is it at least as likely as not (i.e., a 50 percent or greater probability) that it is causally related to his service, including as due to blast trauma injuries sustained therein. (b) If (and only if) additional evidence received (i.e., the private records sought) tends to relate the other claimed disabilities (pterygium, astigmatism, floaters) to the Veteran's service/trauma therein, the examiner should opine regarding the etiology of those disabilities, and specifically whether or not they were incurred or aggravated in service (including as due to blast trauma therein). The explanation of rationale must address all additional nexus evidence received. The examiner must explain the rationale for all opinions. 3. The RO should then review the record and readjudicate the claims. If either remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ GEORGE R. SENYK 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).