Citation Nr: 1318407 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-42 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for a malignant choroidal melanoma of the left eye. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and R.P. ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from October 1952 to September 1954. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2009 and July 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). In March 2013, the Veteran submitted additional evidence with a waiver of his right to have his claims readjudicated by the RO with the additional evidence. See 38 C.F.R. § 20.1304(c) (2012). 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 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 The Veteran contends that service connection is warranted for a lumbar spine disability, a cervical spine disability, and malignant choroidal melanoma of the left eye. During a March 2013 hearing before the Board, the Veteran testified that, during service, he was thrown from a Jeep injuring his lumbar spine and cervical spine. He explained that he was taken to the base hospital in Stuttgart, Germany, where he stayed for three to four days. The Board observes that, in November 2008, the National Personnel Records Center (NPRC) reported that the Veteran's service treatment records were fire-related, but that some of the service treatment records were available but were too moldy or brittle to be mailed, so copies of the available records were provided. The record reflects that copies of some of the treatment records are in the file, although the available records do not indicate any treatment for injuries to the lumbar or cervical spine, or that the Veteran was treated for any injuries after having been thrown from a Jeep. In cases where service records are unavailable, there is a heightened obligation to assist the claimant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The claims file does not reflect an attempt by the RO to search alternate sources for any clinical records or sick/morning reports for the Veteran's reported in-service hospital treatment. Accordingly, the RO should verify with the Veteran the name and dates of any hospital treatment for his lumbar spine and cervical spine disorders and conduct a search for any additional treatment records, to include clinical records from the identified hospital during the identified time period. The RO should also conduct a search for any and all available sick/morning reports. With regard to the Veteran's claim for entitlement to service connection for a left eye disability, the Veteran was provided with a VA examination to determine the etiology of that disability in February 2012. Although an etiological opinion with supporting explanation and rationale was requested, the examiner merely concluded that "[t]he etiology of choroidal melanoma is unknown." The Board finds this opinion to be inadequate upon which to base an appellate decision. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination). Initially, the Board observes that the examiner's statement that the etiology of choroidal melanoma is unknown is not an opinion as to whether the Veteran's left eye disability is related to service, which was requested by the RO. If an examiner concludes that an opinion as to the etiology of a disability cannot be provided without resorting to mere speculation, the examiner is required to provide the reasons why an opinion would require speculation, which the examiner did not do in this case. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (holding that if an examiner concludes that a nonspeculative opinion cannot be offered, he or she must explain the basis for such a conclusion). Moreover, the examiner did not address any of the positive evidence in the claims file, such as the Veteran's lay statements that he had left eye symptoms during service, his reports that he was exposed to toxic fumes and sun during service, the private medial opinions suggesting a link between the Veteran's current left eye disability and his in-service symptoms, and the article cited by the private physician which links ocular melanomas with sun exposure. Accordingly, the opinion provided by the February 2012 examiner is inadequate, and the Veteran should be provided with a new VA examination to determine the etiology of his left eye disability. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO must request that the Veteran identify the name of the hospital in which he was treated for a lumbar spine disability and cervical spine disability after having been thrown from a Jeep during service and the approximate dates of such treatment within a three-month window. Thereafter, the RO must request directly from the identified hospital the clinical records of all treatment rendered at any hospital identified by the Veteran during the identified time period. The RO must also obtain all of the Veteran's sick/morning reports during his active duty service. All information obtained must be made part of the claims file. All attempts to secure this evidence must be documented in the claims file by the RO. If the RO determines that such records do not exist or that further efforts to obtain them would be futile, the RO must notify the Veteran and his representative and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) notify him that it is ultimately his responsibility to provide the information identified. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the Veteran must be provided with a new VA examination to determine the etiology of his malignant choroidal melanoma of the left eye. The Veteran's claims file and all electronic records must be made available to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon the evidence of record, to include the available service treatment records, the post-service medical evidence, the Veteran's lay statements that he had left eye symptoms during service, and the private medical opinions of record, the VA examiner must provide an opinion as to: a) Whether it is at least as likely as not that any current left eye disability is etiologically related to the Veteran's active duty service? b) Whether it is at least as likely as not that any malignant choroidal melanoma of the left eye had its onset during the Veteran's active duty service? A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 3. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the Veteran's last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing all appropriate development as indicated above, the RO must readjudicate the issues on appeal. If any of the benefits sought on appeal remain denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. 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). _________________________________________________ U. R. POWELL 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).