Citation Nr: 1321059 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 10-00 100A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a right eye disorder, claimed as busted retina and cataract. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in September 2009, a statement of the case was issued in November 2009, and a substantive appeal was received in January 2010. In April 2011, the Veteran failed to appear for a scheduled Travel Board hearing. 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 Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 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, the Board is of the opinion that 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 the matter on appeal. See 38 C.F.R. § 3.159 (2012). The Veteran alleges that his current right eye disability was incurred during service. He has stated that he failed an eye test in August 1969 associated with maintaining his commercial driver's license and, as a result, lost his job with U.P.S. The claims file does contain a September 1969 VA examination which noted a complaint of decreasing vision in the right eye for the previous 3 months; the diagnosis was a developmental refractive error. VA treatment records reflect right eye retina scleral backup surgery in August 2007 and cataract surgery in February 2008. The Veteran has stated (and is competent to observe) that he has continued to have right eye symptoms since separation from service. Given the medical evidence of current right eye problems, and the lay statements from the Veteran that he has experienced continuous symptoms since service, the "low threshold" standard outlined in McLendon is met. The question presented (whether based on the entire record the Veteran has a current right eye disorder that began in service) is a medical question, and a VA nexus examination is necessary to determine the nature of, and likely etiology for, any current right eye disabilities. Finally, a review of the claims file found that the most recent VA treatment records in evidence (including in Virtual VA) are from September 2008, indicating that there may be additional VA treatment records not yet associated with the claims file. Such records of treatment would be pertinent and perhaps critical evidence regarding the claim on appeal; VA treatment records are constructively in evidence and must be secured. Accordingly, the case is REMANDED for the following action: 1. The RO should secure for the record copies of the complete clinical records of any (and all) pertinent VA treatment records since September 2008. 2. The RO should review the records received, and arrange for any further development suggested by the information therein. 3. The RO should then arrange for an appropriate examination of the Veteran to determine the nature and likely etiology of his right eye disorder(s). The Veteran's claims file must be furnished to the examiner for review in connection with the examination. Based on examination of the Veteran and review of his claims file, the examiner should provide an opinion that responds to the following: (a) Please identify (by medical diagnosis) the Veteran's right eye disability/disabilities. (b) As to each disability entity diagnosed is it at least as likely as not (a 50% or greater probability) that such disability was manifested in the Veteran's active duty service or is otherwise causally related to such service? (c) The examiner must explain the rationale for all opinions. 4. After completion of the above and any additional development the RO may deem necessary, the RO should review the expanded record and readjudicate the claim. The Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an 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 matter 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). _________________________________________________ ALAN S. PEEVY 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).