Citation Nr: 1327086 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 10-06 891 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for mild to moderate dry eyes, claimed as an eye condition. ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from February 1979 to April 1979 and from May 2006 to July 2007 with additional service in the Army Reserve. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2007 rating decision in which the RO, inter alia, denied service connection for refractive error and for mild to moderate dry eyes, claimed as an eye condition. In September 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in December 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2010. In September 2012, the Board denied service connection for a disability manifested by vision loss and remanded the claim for service connection for a disability manifested by mild to moderate dry eyes for further development. The Virtual VA paperless claims processing system contains additional VA outpatient treatment records that have been considered. For reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. REMAND Unfortunately, the Board finds that further RO action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In September 2012, the Board remanded the claim, in part, for the RO (via the AMC), to obtain records of outpatient VA treatment dated since June 2012, and after the completion of this action, to obtain an examination by, and an opinion from, a VA ophthalmologist. Neither the paper claims file nor the electronic folder includes any additional records, and the VA ophthalmologist's opinion did not fully explain why diagnoses of allergic conjunctivitis noted by the Veteran's regular eye care physician from 2007 to 2009 were not a continuation of the same diagnosis noted in service. A claimant satisfies the current disability threshold when a disability exists at the time his or her claim was filed, even if the disability resolves prior to VA's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007 The Veteran contends that he has a current eye disability that began during his service. While serving in Kuwait in June 2007, the Veteran sought treatment for inflammation of the right eye conjunctiva. A primary care physician diagnosed conjunctivitis and prescribed antibiotic drops. Two weeks later, another primary care physician noted that the Veteran's eye symptoms had not improved and were worse when he was outdoors. The physician changed the diagnosis to chronic allergic conjunctivitis caused by an irritant. An Environmental/Occupational Health Data Sheet in the service treatment records reported that the level of airborne particulate matter (largely blowing sand and powdered sulfur in port areas) in the Middle East was higher than in the United States and could cause irritation of the eyes. The author noted that symptoms are expected to resolve when exposure ceases with no long term health effects. In a June 2007 post-deployment health assessment, the Veteran reported that he was often exposed to sand and dust, as well as smoke from oil fires, vehicle or truck exhaust fumes, tent heater smoke, and paints. The Veteran underwent a VA general medical examination and a compensation and pension eye examination in September 2007. After reviewing the claims file and examining the Veteran, the general medical examiner noted that the conjunctiva were clear and did not diagnose any disorder. Another physician performed an eye examination on the same day, diagnosed mild-moderate dry eyes, and concluded that the symptoms were not related to military service without further explanation. The Virtual VA electronic outpatient records show that the Veteran received regular consultations with a VA ophthalmologist in September 2007, February 2008, August 2008, and May 2009. On each occasion, the ophthalmologist diagnosed allergic conjunctivitis and dry-eye syndrome and prescribed eye drops. The Veteran was discharged from this clinic in May 2009 and thereafter underwent examinations by a VA optometrist in April 2010, February 2011, and June 2012, and by a contract physician in June 2013. On each occasion, the optometrist or physician noted normal conjunctivae with no symptoms and no allergies. Pursuant to the Board's September 2012 remand, in February 2013, another VA ophthalmologist noted a review of the record. He referred to the treatment in service and to the September 2007 general medical and compensation examination reports found in the paper claims file and to the records in the electronic file that included the outpatient eye consultations from 2007 to 2012. The ophthalmologist diagnosed current blepharitis and mild chronic conjunctivitis that were not allergenic. He accurately noted that the symptoms were diagnosed as an allergic reaction in service and that the Veteran continued to be diagnosed and treated for this disorder after service up to 2009. Therefore, he concluded the current symptoms were not a continuation of the allergic disorder noted in service in Kuwait but did not clearly address why the post-service diagnoses and treatment for allergic conjunctivitis for at least part of the period covered by this appeal up to 2009 was a misdiagnosis or a different form of allergic reaction to substances other than those experienced in service in Southwest Asia. Under the above-noted circumstances, the Board finds that further medical opinion-based on full consideration of the Veteran's documented medical history and assertions, post-service VA outpatient treatment, and supported by full, clearly-stated rationale-is needed. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the RO should arrange for the Veteran's claims file be sent to the VA ophthalmologist who performed the examination in February 2013, or if unavailable, to another VA ophthalmologist. An examination is not necessary unless required by the specialist performing the record review. Prior to obtaining further medical opinion, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, neither the paper claims file or the Virtual VA, electronic folder contains VA outpatient treatment records dated since June 2012. Up to that date, the Veteran had been receiving regular VA outpatient treatment including eye examinations from 2007 to June 2012. The February 2013 examiner referred to treatment in November 2012 and in a March 2013 supplemental statement of the case, the AMC referred to VA records of care through February 2013. These records are not in the paper claims file, or the electronic claims folder. A complete file is necessary to decide the claim. The Board emphasizes that 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. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from pertinent VA facilities (to include the Mayaguez VA Outpatient Clinic (OPC) of the San Juan VA Medical Center (VAMC)) all outstanding, pertinent records of evaluation and/or treatment of the Veteran dated since June 2012. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2011) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2011). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. The RO's adjudication of the claims must include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of the claim. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain all outstanding, pertinent records of evaluation and/or treatment of the Veteran at VA facilities (to include the Mayaguez OPC of the San Juan VAMC) dated since June 2012. Follow the procedures set forth in 38 C.F.R. § 3.159(c) for requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for a medical review of the Veteran's paper claims file and electronic folder by the ophthalmologist who performed the February 2013 examination, if available, or another ophthalmologist at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the ophthalmologist, and the examination report should include discussion of the Veteran's documented medical history and assertions. If the ophthalmologist does not have access to the electronic CAPRI records posted in Virtual VA as document 34727822310, these records must be printed and included in the paper claims file. The ophthalmologist should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any chronic conjunctivitis disability present after July 2007 (even if now resolved) had its onset in or is otherwise medically related to service, to include treatment for allergic conjunctivitis or exposure to blowing sand and other irritants during service in Southwest Asia. In rendering the requested opinion, the ophthalmologist should specifically consider and discuss all pertinent service treatment records, VA treatment records (including those in the electronic record), and the Veteran's contentions. The ophthalmologist must address whether the diagnoses of allergic conjunctivitis and dry eye syndrome by the attending VA ophthalmologist in September 2007, February 2008, August 2008, and May 2009 are at least as likely as not a continuation of the disorder diagnosed during overseas service in June 2007. The ophthalmologist should set forth the complete rationale for the conclusions reached in a printed (typewritten) report. A physical examination is not necessary unless required by the specialist to provide the requested opinion. 5. If the Veteran fails to report to any scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal in light of pertinent evidence (to particularly include all that added to the record since the last adjudication of the claim in March 2013) and legal authority. 8. If the benefit sought on appeal remains denied, furnish to the Veteran an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford the Veteran the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).