Citation Nr: 1322024 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 12-06 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for residuals of an infection of the eyes. WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1956 to July 1960. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Reno, Nevada. In May 2013, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record and is located in the Veteran's Virtual VA file. The Board has considered documentation included in the Virtual VA system in reaching the determination below. At present, the system contains VA treatment records that are not physically in the file, but that were considered by the RO in the last supplemental statement of the case. 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 appeal is REMANDED 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's review of the claims file reveals that further RO action on the appeal is warranted. First, it is unclear from the Veteran's statements whether he contends that the residuals of the in-service infection affect one or both eyes. This matter should be clarified on remand. Second, a VA examination has not yet been afforded for this claim. VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. At the hearing, the Veteran contended that he currently suffers from a scar in the back of the eye, resulting in a scratchy feeling and irritation, which was caused by contamination to his eye during the performance of in-service duties as a medic. Specifically, the Veteran testified that he was told by his treating VA physicians that an infection in the eye may have occurred when the Veteran rubbed his eye during an autopsy, for example. He testified that the infection he suffers from is known to occur only in the Philippines. The current medical record contains various diagnoses pertaining to the Veteran's eyes. In a September 2011 VA treatment record, he was diagnosed with chorioretinal scars of the left eye, due to "possible inactive toxoplasmosis chorioretinitis." He was also diagnosed with dry eye syndrome, cataracts, and presbyopia of both eyes. In an August 2010 VA treatment record, he was diagnosed with conjunctivitis of the left eye. As for the in-service incurrence of the disorder, the Veteran's service treatment records are silent for documentation of an infection or injury to the Veteran's eyes. His visual examination was normal on separation from service, and no abnormalities of the eyes were found. The Veteran and his wife, however, are competent to describe the in-service incurrence of the Veteran's eye problems. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Washington v. Nicholson, 19 Vet. App. 362 (2005). At the May 2013 hearing, the Veteran testified that the condition was not actually diagnosed during service, but was discovered years later. His wife testified that she and the Veteran were married when he was in service. She testified that during service, the Veteran suffered from headaches, and that he used eye drops and eye creams to alleviate symptoms. Further, the Veteran's DD214 Form confirms that he served as a hospitalman during active service. Given the evidence above, to include the September 2011 VA treatment record which suggests the possibility of a relationship between the Veteran's current eye disorder and a past infection, an opinion concerning the etiology of the Veteran's current eye disorder(s) should be sought prior to appellate adjudication. Finally, the record shows that the Veteran has been receiving treatment at VA Medical Center (VAMC) in Las Vegas, Nevada. While the claims file includes treatment records dated through November 2012, more recent treatment records may now be available. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, on remand, the RO/AMC should obtain any outstanding records that are relevant to the issues on appeal. 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/AMC should take appropriate steps to contact the Veteran in order to clarify whether his claim involves the left eye, right eye, or both eyes. All correspondence concerning this matter should be fully documented in the record. 2. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment his eye disorder(s). After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. The RO/AMC should obtain any outstanding VA treatment records dated since 2012, including from the VA Medical Center in Las Vegas, Nevada. 3. After any additional records are associated with the claims file, provide the Veteran with an ophthalmological examination to determine the etiology of his eye disorder(s). The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. The examiner must first provide all diagnoses of the eyes, addressing the Veteran's reported symptoms. The examiner must provide an opinion, in light of the examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that each diagnosed eye disorder was caused or aggravated by the Veteran's military service. In so doing, the examiner should address the September 2011 VA diagnosis of scars of the left eye due to possible inactive toxoplasmosis chorioretinitis. The Veteran contends that his current disorder of the eye is actually a scar that developed as a result of an infection of the eyes incurred during the performance of his duties as a medic, including during the performance of autopsies. The Veteran reports he has been told by VA physicians that this type of infection is indigenous to the Philippines. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. 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). 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). 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). _________________________________________________ K. MILLIKAN Acting 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).