Citation Nr: 1324435 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 10-04 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an eye disability, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel REMAND The Veteran served on active duty from January 2003 to April 2004. He also had 1 year, 2 months, and 22 days of prior active service (reported by the agency of original jurisdiction (AOJ) as being from August 1987 to January 1988) and had various periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) with the Army Reserve. He received the Army Commendation Medal. This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran contends that his current eye disability is related to his service-connected diabetes mellitus and/or hypertension. He was afforded a VA examination in November 2008 to assess the nature and etiology of his current eye disability and was diagnosed as having glaucoma. The physician who conducted the examination opined that there was "no diabetic retinopathy which would warrant eye inclusion in the service-connection." This opinion was based on a review of the Veteran's medical records, the absence of evidence of diabetic retinopathy, and the fact that his visual acuity was 20/20 with near vision of "J1+" with glasses. The November 2008 opinion is insufficient. Although it implies that the Veteran's current eye disability was not caused by diabetes mellitus, it does not specifically address whether an eye disability was caused or aggravated by the service-connected diabetes mellitus and/or hypertension. Thus, a remand is necessary to obtain a new opinion as to the etiology of the Veteran's current eye disability. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012). Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569. Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). A February 2008 VA examination report reveals that the Veteran had reportedly experienced vision problems since 1986. In July, September, and October 2004, the AOJ contacted the Veteran's Army Reserve unit and requested copies of all available service treatment records and verification as to his periods of service. The October 2004 letter was returned to the AOJ, but there were no service treatment records included with the letter or any information pertaining to the Veteran's periods of service. The Veteran was subsequently informed of the efforts that had been undertaken to obtain his service treatment records from the Army Reserve and was asked to request that his unit submit the records to VA or to otherwise obtain the records. The evidence associated with the Veteran's claims file appears to reflect that he submitted copies of service treatment records that had been in his possession. However, there is also evidence that some service treatment records remain outstanding. Specifically, the AOJ made a formal finding in April 2010 that the Veteran's service treatment records for the period of service from August 1987 to January 1988 were unavailable. The efforts reported as being undertaken to obtain the records included the July, September, and October 2004 requests to his Army Reserve unit. Although several requests for the Veteran's additional service treatment records have been made to his Army Reserve unit, it does not appear that the AOJ has contacted the National Personnel Records Center to request such records. Also, despite the fact that the Army Reserve returned the October 2004 letter without any service treatment records or information as to the Veteran's dates of service, it neither confirmed nor denied the existence of any additional records. In this regard, VA has a duty to make as many attempts as necessary to obtain identified, outstanding Federal records, including VA or military records, until a determination is made that such records are unavailable or that any further attempts to obtain them would be futile. See 38 C.F.R. § 3.159(c)(2). Thus, additional action must be taken upon remand to attempt to obtain any additional service treatment records and to verify the Veteran's periods of service with the Army Reserve. Furthermore, a VA primary care treatment note dated on March 22, 2010, indicates that an optometry clinic consultation had been ordered. There are no more recent VA treatment records in the claims file and there are no additional treatment records included among the Veteran's paperless records in the Virtual VA system. Thus, it appears that there may be additional VA treatment records that have not yet been obtained. VA has a duty to obtain any additional relevant records. 38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Additionally, treatment records from Dr. Nagatoshi dated from June to July 2008 were requested and obtained by the AOJ. However, the Veteran subsequently submitted treatment records from Dr. Bizer's Vision World (Dr. Bizer's)/Dr. Nagatoshi dated in November 2010. These records indicate that he was scheduled for follow-up treatment in 3 to 6 months, but there are no additional treatment records from Dr. Bizer's/Dr. Nagatoshi in the claims file or among his paperless records in the Virtual VA system. When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and of the need to provide a release for VA to obtain the records. If the Veteran does not provide the release, VA must ask the Veteran to obtain the records. 38 C.F.R. § 3.159(e)(2). These steps have not yet been taken with regard to any additional relevant treatment records from the above-identified treatment providers. Thus, a remand is also necessary to attempt to obtain any additional relevant private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center, the Army Reserve, and any other appropriate source to verify the nature of the Veteran's service from August 1987 to January 1988 and to attempt to verify his periods of ACDUTRA and INACDUTRA with the Army Reserve. All such efforts must be documented in the claims file. 2. Contact the National Personnel Records Center, the Army Reserve, and any other appropriate source and request all available service treatment and personnel records pertaining to the Veteran's service (including, but not limited to, records pertaining to the period of service from August 1987 to January 1988). If any service treatment records cannot be obtained, take all necessary steps to search alternate sources of records, including following the procedures outlined in VA adjudication manual, M21-1MR. Specifically request records of any relevant treatment reported by the Veteran. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 3. If any service treatment or personnel records are missing or are otherwise unavailable, this fact should be documented and a formal finding of unavailability should be made with notice to the Veteran and his representative. 4. Obtain and associate with the claims file all records of the Veteran's treatment for an eye disability contained in the Louisville Vista electronic records system dated from November 2009 through the present, and from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 5. The AOJ should ask the Veteran to complete authorizations for VA to obtain all records of his treatment for an eye disability from Dr. Nagatoshi dated from July 2008 through the present and from Dr. Bizer's Vision World. All efforts to obtain these records must be documented in the claims file. If the Veteran fails to furnish any necessary releases for private treatment records, he should be advised to obtain the records and submit them to VA. If any putative records are unavailable, the Veteran shall be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claim. All such notification must be documented in the claims file. 6. After all efforts have been exhausted to verify the Veteran's periods of service and to obtain and associate with the claims file any additional service treatment records and post-service treatment records, schedule the Veteran for a VA eye examination to determine whether any current eye disability was incurred or aggravated in service or is related to a service-connected disability. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review. For each current eye disability identified (i.e. any eye disability diagnosed since October 2008), the examiner should answer all of the following questions: (a) Is it at least as likely as not (50 percent probability or more) that the current eye disability had its onset during the Veteran's periods of active duty, had its onset during any period of ACDUTRA or INACDUTRA, was permanently worsened beyond its natural progression during a period of ACDUTRA or INACDUTRA, or is otherwise the result of a disease or injury that had its onset during a period of active duty or ACDUTRA or an injury that occurred during a period of INACDUTRA? (b) Is it at least as likely as not (50 percent probability or more) that the current eye disability was caused (in whole or in part) by the Veteran's service-connected diabetes mellitus and/or hypertension? (c) Is it at least as likely as not (50 percent probability or more) that the current eye disability was aggravated (made chronically worse) by the Veteran's service-connected diabetes mellitus and/or hypertension? If any current eye disability was aggravated by a service-connected disability, the examiner shall also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. (d) Which diagnosed eye conditions, if any, are refractive errors as opposed to acquired eye disabilities? In formulating the above opinions, the examiner should specifically acknowledge and comment on all eye disabilities diagnosed since October 2008, including glaucoma. The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports regarding symptoms, the examiner must provide a reason for doing so. (The absence of evidence of treatment for eye problems in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion). If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 7. The AOJ shall review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 8. If a benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. The Veteran 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 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).