Citation Nr: 1324770 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 10-46 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for retinopathy. 2. Entitlement to service connection for asthma. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant & Spouse ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had verified active service from September 1981 to April 1988, from January to February 1999, from February 2002 to February 2003, and from January to March 2007 with multiple periods of active duty for training (ACDUTRA) and inactive duty training (INADUCTRA). These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In March 2011, the Veteran testified at hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of that hearing is associated with the claims file. After the case was certified to the Board, the Veteran submitted additional evidence to the Board in the form of private medical evidence that was not first considered by the RO. The submission of such evidence was accompanied by a waiver of RO consideration. 38 C.F.R. § 20.1304(c) (2012). The issue of entitlement to service connection for post traumatic stress disorder has been raised by the record, but not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that issue and it is referred to the AOJ for appropriate action. 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 Asthma During his Travel Board hearing, the Veteran reported that he was exposed to smoke from burning oil while serving in Kuwait and that he began to have breathing problems during that time. He also reported that while he was deployed to Afghanistan, he was exposed to dust and was diagnosed with asthma within a year of his return. During subsequent training, he had complaints of shortness of breath and was placed on a profile. He also reported that he was exposed to fuel with benzene during his work in the Reserves, which may also be a contributing factor. Service treatment records, include an August 1986 corrosion control physical and medical evaluation for isocyanate (polyurethane), in which the Veteran claimed that he was exposed to gases, fumes, and chemicals. An August 1986 chest x-ray revealed areas of increased density in the left costophrenic angle region, which could be parenchymal scarring. On an August 1987 medical evaluation for isocyanate, he reported exposure to dust, fumes, and chemicals. STRs reflect that he was in a respiratory protection program. A June 1999 and February 2004 workplace summary reported incidents of chemical inhalation and exposure. On September 2005 and February 2007 post deployment assessments, he reported exposure to JP8 and other fuels. In February 2007, he also indicated exposure to sand and dust. In October and November 2008, he complained of shortness of breath. A prior history of smoking was noted. On November 2008 and December 2009 Dental Patient Medical History, the Veteran had complaints of shortness of breath. An April 2009 record noted that the Veteran was diagnosed with asthma. In light of the Veteran's in-service exposure to chemicals, sand, and dust, and complaints of shortness of breath, and an April 2009 diagnosis of asthma, the Veteran should be afforded a VA examination to assess the nature and etiology of his claimed asthma. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hypertension The Veteran contends that he had elevated blood pressure readings in November 2008 (144/92), during a period of INACDUTRA; however, he claims that he was diagnosed with hypertension within a year of his return from active duty service in Afghanistan. Service treatment records included a DD Form 2766 that reported blood pressure readings across multiple screening examinations. In November 2005, the Veteran's blood pressure was 136/87, in November 2008 it was 144/92, and in 209 in was 122/82. On November 2008 and Dental Patient Medical History, the Veteran's blood pressure was 131/91 and he was cautioned about his blood pressure reading. A subsequent December 2009 Dental history showed that the Veteran had high blood pressure. In March 2011 correspondence, Dr. L.R.D. opined that the Veteran's hypertension was more likely than not secondary to the Veteran's service-connected hypertension (sic), based on elevated blood pressure noted during service. The Veteran should be afforded a VA examination to assess the nature and etiology of his claimed hypertension. Retinopathy The Veteran contends that his retinopathy began during his January to March 2007 active duty service. The Veteran, his spouse, and his representative also indicated that eye problems are related to stress from service. See May 2009 Veteran statement, December 2009 spouse statement, and March 2011 hearing transcript. In the alternative, the Veteran claims that his eye disability is secondary to his hypertension. Until the claim for hypertension has been properly developed, the Board cannot fully or fairly consider this secondary service connection claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The AOJ therefore must re-adjudicate the issue of service connection for hypertension prior to the Board's appellate review of the other aspects of the appeal. In regards to direct service connection, service treatment records included a May 1985 record that noted complaints of feeling like he had a foreign body in his left eye. On examination, both eyes appeared red, especially the left eye. In January 1988, he was seen with complaints of a "bump" in his left eye. He was diagnosed with pinguecula with minimal irritation. In August 1990, he was hit in the left eye while playing basketball and required sutures. September 1997 treatment records noted that the Veteran's left eye was irritated by the sun and wind and underwent pterygium surgery. The record noted that it was questionable as to whether he previously had pterygium removed in his right eye. On a January 2003 Reserve Component Health Risk Assessment, he reported eye problems with questionable blurred vision and surgery in both eyes for growths. He stated that he had problems with growths on his eyes since removal. He stated that his eye would get red easily and that he took precautions for chemical exposure. He indicated that he had a non-military job that exposed him to hazardous chemicals, including jet fuel, engine oil, and "Hyd Fluid." In January 2003, he was diagnosed with recurrent pterygium in both eyes and left nevus retina. A February 2006 treatment record that noted left eye blurriness and questionable visual acuity secondary to corneal distortion from pterygium. An October 2006 record noted that the Veteran had surgery in both of his eyes in 1994 and that his civilian job involved exposure to jet fuel. In regards to the nature and etiology of the current eye disability, a May 2009 treatment record from Retina Centers, PC reported a two year history of decreased vision, left eye. February 2009 correspondence from Retina Associates Southwest noted a history provided by the Veteran of seeing a doctor many years ago who told him that he had leakage in his left eye related to stress. In March 2011 correspondence, Dr. A.H. reported that she reviewed the Veteran's current treatment records and indicated it was more likely than not that the Veteran's central serous retinopathy was worsened by his military service. In light of the complaints of eye problems during service, which includes some periods of active service, as well as post service complaints, and an opinion suggesting that the Veteran's service at least contributed to the current eye disability, the Veteran should be afforded a VA examination to assess the nature and etiology of any eye disability, including retinopathy. McLendon, supra; see also Davidson, supra. There appears to be outstanding treatment records. The earliest record associated with the claims file regarding the Veteran's eye condition is correspondence dated February 12, 2009, from Retina Associates Southwest, PC. However, during his March 2011 Travel Board hearing, the Veteran and his wife reported that he sought treatment for his eye condition in the beginning of February 12, 2009, prior to the February 12, 2009 correspondence. Additionally, the Veteran reported that since February 2009, he had annual eye examinations and only June 2009, December 2009, and January 2011 treatment records have been associated with the claims file. Furthermore, the Veteran testified that he underwent photodynamic laser surgery in 2011 and had a follow-up appointment scheduled in March 2011; however, such treatment records have not been associated with the claims file. In a VA Form 21-4142, the Veteran reported treatment at the VA Hospital Eye Clinic located in Tucson, Arizona in May 2009; however, such treatment records have not been associated with the claims file. VA has a duty to obtain any additional relevant VA treatment records. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file May 2009 and any other records of the Veteran's treatment from the VA Hospital Eye Clinic located in Tucson, Arizona, as well as from any other sufficiently identified VA facility for any other claimed disability. If any such records are unavailable, the Veteran should be notified of the identity of any records that are unavailable, the efforts VA has undertaken to obtain the records, and any further action that may be taken concerning his claims, and he should be notified that he may submit the records himself. All such notification must be documented in the claims file. If the VHA medical records are electronically available in CAPRI, upload these to the Virtual VA eFolder. 2. Request that the Veteran identify any medical treatment records for his hypertension, asthma, and eye disability, and furnish appropriate authorization for the release of private medical records, to include complete treatment records beginning in February 2009 from Retina Associates Southwest, and all treatment records from Drs. A.H. and L.R.D. 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. 38 C.F.R. § 3.159 (2012). Any negative search response must be noted in the record and communicated to the Veteran. 3. Thereafter, the Veteran should be scheduled for a VA examination with a physician to ascertain the nature and etiology of any hypertension. The claims file and Virtual VA record should be reviewed in conjunction with such examination. Any medically indicated special tests, should be accomplished, and all special test and clinical findings should be clearly reported. The examiner should indicate whether hypertension at least as likely as not (a 50 percent or higher degree of probability) had its clinical onset during a period of active service or within a year of separation from a period of active service, or is it otherwise related to service, to include alleged stress therein. The examiner should comment on any heightened blood pressure readings noted during service. All opinions and conclusions expressed must be supported by a complete rationale in a report. Consideration should be given to the service treatment records, post-service treatment records, and lay statements and testimony of the Veteran. 4. Schedule the Veteran for a VA examination in order to determine the nature and etiology of any eye disability, including retinopathy. The claims file and Virtual VA record should be reviewed in conjunction with such examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. For each eye disability found, the examiner should indicate whether it at least as likely as not (a 50 percent or higher degree of probability) had its clinical onset during a period of active service, or is it otherwise related to service or was aggravated therein. If hypertension is found to be attributable to military service, the examiner should then opine as to whether it is at least as likely as not that the current eye disability was either caused or aggravated (made worse) by the Veteran's hypertension. If aggravated, specify the baseline of eye disability prior to aggravation, and the permanent, measurable increase in eye disability resulting from the aggravation. All opinions and conclusions expressed must be supported by a complete rationale in a report. Consideration should be given to the service treatment records, post-service treatment records, and lay statements and testimony of the Veteran. 5. The Veteran should be scheduled for a VA examination with a physician to ascertain the nature and etiology of any respiratory disability, including asthma. The claims file and Virtual VA record should be reviewed in conjunction with such examination. The examiner should also be provided with verified periods of active duty, ADITRA, and INACDUTRA. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. For each respiratory disability found, the examiner should indicate whether it is at least as likely as not (a 50 percent or higher degree of probability) is a result of active service, to include service in Kuwait and exposure to burning oil, service in Afghanistan and exposure to sand/dust. All opinions and conclusions expressed must be supported by a complete rationale in a report. Consideration should be given to the service treatment records, post-service treatment records, and lay statements and testimony of the Veteran. 6. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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). _________________________________________________ THOMAS J. DANNAHER 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).