Citation Nr: 1325686 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 10-05 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Service connection for a low back disorder. 2. Service connection for a neck disorder. 3. Service connection for a right knee disorder. 4. Service connection for a bilateral eye disorder. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from November 1968 to September 1972. The Veteran had additional service in the United States Army Reserve (Reserve), including a period of active duty from November 18, 2007 to December 7, 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied the benefits sought on appeal. The Veteran participated in a hearing before the undersigned in May 2013, and a transcript of this hearing has been associated with the Veteran's claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required on his part. REMAND The Board finds that additional development is required before the Board may adjudicate the Veteran's claims. As stated above, the Veteran served in the Reserve following his separation from active duty in September 1972, with one period of active duty in 2007. During his May 2013 hearing before the undersigned, the Veteran suggested that his disabilities may arise from not only his periods of active service, but also from possible periods of service for active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Reserve. The existing evidence of record does not document the Veteran's periods of ACDUTRA and INACDUTRA service; on remand, appropriate steps should be taken to verify such dates of service. While the Veteran has submitted certain medical records associated with his period of active duty service from 2007, the record otherwise contains medical records only from the Veteran's period of active duty service from November 1968 to September 1972 and from the Veteran's Reserve service from 1975 to 2004. On remand, appropriate steps should be taken to obtain all outstanding records relating to the Veteran's Reserve, including his period of active duty service in 2007. VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not received an examination addressing his claimed disabilities. The Veteran has satisfied the first McLendon element with respect to each of his claimed disabilities. A March 2007 radiological report indicates that the Veteran had spondylosis with disc space narrowing at L4-L5 and L5-S1. An October 2010 radiological report indicates that the Veteran had spondylosis with encroachment suspected at C6-C7. A December 2007 radiological report indicates that the Veteran had mild degenerative changes in the right knee. While the record is less clear as to whether the Veteran currently suffers from a bilateral eye disorder, the Board notes that a private optometrist indicated that the Veteran had received treatment for a cyst in August 2008 and blurred vision in January 2009. The Veteran has satisfied the second McLendon element with respect to each of his claimed disabilities. In June 1972, the Veteran was treated for muscular back pain. In November 2007, the Veteran appears to have suffered a neck injury from firing weapons. A November 2007 record suggests that the Veteran suffered a right knee injury in service. In September 1971 and March 1972, the Veteran complained of spots in his vision. With respect to the third McLendon element, the Veteran has contended that each of his claimed conditions is related to service. No VA examiner has opined as to the likelihood of such a relationship. Accordingly, the Board finds that the Veteran should be afforded a VA examination in order to determine the nature and etiology of each of his claimed disabilities. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and ask him to provide any additional evidence or argument pertaining to the issues on appeal. The Veteran must be afforded a reasonable period to respond to this request, and any evidence received should be associated with the Veteran's claims file. 2. Take all additional appropriate efforts to confirm the Veteran's dates of active duty service, ACDUTRA service, and INACDUTRA service. Enumerate (by month, day, and year) and verify all periods of ACDUTRA and INACDUTRA. This enumeration must be clear and should consist of more than just the Veteran's retirement points. Any records obtained must be associated with the claims folder. 3. Take all appropriate efforts to obtain outstanding service treatment records relating to the Veteran's period of Reserve service, including his 2007 period of active duty service. 4. Obtain copies of updated treatment records, VA and non-VA, and associate them with the claims folder. 5. Following completion of the above, schedule the Veteran for an examination (or examinations) with a VA examiner (or examiners) of appropriate expertise to determine the nature and etiology of the Veteran's claimed low back, neck, right knee, and bilateral eye disorders. The claims folder must be provided to the examiner in connection with the examination, and the examiner must state that the claims folder has been reviewed. Any tests deemed necessary should be conducted. The examiner should be provided a list of all verified periods of active duty service, ACDUTRA service, and INACDUTRA service. After discussing the nature of the Veteran's current low back, neck, right knee, and bilateral eye disorders, the examiner should opine as to whether it is at least as likely as not (that is, a 50 percent probability or greater) that any currently-diagnosed low back, neck, right knee, and bilateral eye disorder was caused or aggravated (that is, a permanent worsening as opposed to temporary flare-ups or increase in symptoms) by any incident of service. All verified periods of active duty service, ACDUTRA service, and INACDUTRA service must be separately and specifically considered. 6. Thereafter, readjudicate the Veteran's claims. If the benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond. The case should be returned to the Board, as warranted. The Veteran has the right to submit additional evidence and argument on the matters that 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ BARBARA B. COPELAND 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).