Citation Nr: 1322694 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 12-05 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for a bilateral eye disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from August 1950 to June 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, which, in pertinent part, denied entitlement to service connection for a bilateral eye condition. In June 2013, the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. 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 a bilateral eye disability, currently diagnosed as myopia, cataracts, and a macular pucker, was incurred due to in-service radiation exposure when he visited Nagasaki, Japan in 1953. Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), affirmed at 120 F.3d. 1239 (Fed. Cir. 1997). First, there are certain types of cancer which will be presumptively service connected. See 38 U.S.C.A. § 1112c; 38 C.F.R. § 3.309(d). Second, 38 C.F.R. § 3.311(b) includes a list of "radiogenic diseases" which will be service connected provided that certain conditions specified in that regulation are met. The regulation states that, if the Veteran has one of the radiogenic diseases, the case will be referred to the Under Secretary for Benefits for review as to whether sound scientific medical evidence supports the conclusion that it is at least as likely as not that the Veteran's disease resulted from radiation exposure during service. Third, direct service connection can be established by "show[ing] that the disease or malady was incurred during or aggravated by service, a task which includes the difficult burden of tracing causation to a condition or event during service." See Combee v. Brown, 34 F.3d 1039, 1043 (Fed.Cir. 1994). Where the issue involves such a question of medical causation, competent evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Because the Veteran did not engage in one of the specific radiation risk activities set forth in 38 C.F.R. § 3.309(d)(3) (such onsite participation in atmospheric detonation of a nuclear device or occupation of Hiroshima or Nagasaki Japan during the period beginning on August 6, 1945, and ending July 1, 1946), the presumptive provisions of 38 C.F.R. § 3.309 are not for application. The Board also notes that posterior subscapular cataracts are set forth in 38 C.F.R. § 3.311(b)(2) as a radiogenic disease. However, a letter dated in January 2011 from Ryan L. Geraets, M.D., indicates that the Veteran had cataracts in the anterior part of his eye. Anterior cataracts do not qualify as a radiogenic disease under 38 C.F.R. § 3.311(b)(2). In addition, the Veteran has not cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. Thus, the procedural development mandates under 38 C.F.R. § 3.311 for claims based on exposure to ionizing radiation are not applicable, at least based on the evidence currently of record. Nevertheless, the Board finds that additional development of evidence is required. In an August 2011 statement, the Veteran reported receiving treatment for the claimed eye disability with a private physician identified as Dr. Wischmeier in Aberdeen, South Dakota. During the June 2013 hearing, the Veteran also testified that Dr. Wischmeier had made a "remark" about his claimed radiation exposure. The claims file does not currently contain records from Dr. Wischmeier or indicate that efforts have been made to obtain such records. VA has a duty to obtain relevant records of treatment reported by private physicians. Massey v. Brown, 7 Vet. App. 204 (1994). The RO should also obtain any updated VA treatment records. If the records from Dr. Wischmeier or VA contain a diagnosis of posterior subscapular cataracts, or include medical opinion indicating that any of the Veteran's eye problems may be due to radiation exposure, then the RO should undertake additional development pursuant to the provisions of 38 C.F.R. § 3.311. 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. Provide the Veteran with medical release forms and request that he execute them to authorize VA to obtain medical treatment records from all private physicians who have treated the claimed disability, to include Dr. Wischmeier in Aberdeen, South Dakota. 2. If proper medical release forms are received, obtain records of treatment from the physicians identified by the Veteran. In addition, obtained updated copies of all VA medical treatment records. Copies of all records must be associated with the Veteran's paper or virtual claims file. If unsuccessful in obtaining this evidence, inform the Veteran and request him to provide the outstanding evidence. 3. If and only if the records from Dr. Wischmeier of VA medical facilities contain a diagnosis of posterior subscapular cataracts, or include medical opinion indicating that any of the Veteran's eye problems may be due to radiation exposure, then the RO should undertake additional development pursuant to the provisions of 38 C.F.R. § 3.311. In accordance with 38 C.F.R. § 3.311(a)(2)(iii), forward the Veteran's records concerning his radiation exposure, including any service records, statements and testimony regarding radiation exposure, to the Under Secretary for Health, for preparation of a dose estimate, to the extent feasible. (If a specific estimate cannot be made, a range of possible doses should be provided.) If the above-requested development results in a positive dose estimate, the case should then be referred to the Under Secretary for Benefits for an opinion under 38 C.F.R. § 3.311(c) regarding whether it is at least as likely as not that the Veteran's eye problems resulted from exposure to radiation in service. 4. Readjudicate the claim on appeal. If the benefit sought is not fully granted, issue a SSOC before returning the case to the Board, if otherwise in order. 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). _________________________________________________ MICHAEL MARTIN 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).