Citation Nr: 1329646 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 09-37 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for bilateral glaucoma. 2. Entitlement to service connection for asthma with allergies. 3. Entitlement to service connection for a cardiac disability. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1954 to June 1960. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Chicago, Illinois RO. In September 2010, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In August 2012, the Board issued a decision that denied the Veteran's claims of service connection for bilateral glaucoma and asthma with allergies, and remanded his claim of service connection for a cardiac disability for additional development. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2013, the Court vacated the Board's decision as it pertained to the two denied claims, and remanded those two issues to the Board for further action consistent with a May 2013 Joint Motion for Remand (Joint Motion) by the parties. (The Joint Motion affirmed that, because there was no final Board decision regarding the claim for service connection for a cardiac disability, the Court did not have jurisdiction over that claim.) The Board notes that it has reviewed both the Veteran's physical claims file and Virtual VA to ensure that the complete record is considered. Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. REMAND On review of the record the Board has found that further development is needed for VA to fulfill its duties mandated under the VCAA. As an initial matter, the Board notes that the Veteran submitted a statement in February 2011 wherein he asked VA to obtain all records from the VA Medical Center in Danville, Illinois and from the VA Community Based Outpatient Clinic in Decatur, Illinois "for [the] last 30 plus years." By this statement, the Veteran indicated that he began receiving VA medical treatment in approximately 1981 or earlier. At present, the earliest VA treatment records that have been associated with the claims file are dated in January 1996. Any VA records pertaining to treatment of the claimed disabilities dating as early as 1981 (or earlier) would have a bearing on the instant claim (and are constructively of record); therefore they must be secured. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Bilateral Glaucoma The Veteran contends that he has bilateral glaucoma as a result of being hit in the eyes with a softball during service or a result of burning both of his eyes as a welder in service. The Veteran's service treatment records (STRs) document the following. At his November 1954 service entrance examination, his vision was noted to be 20/20 in both eyes. In April 1958, he complained of swelling and irritation of the eyes and was diagnosed with blepharitis in both eyes. In July 1958, he was struck in his left eye by a softball and sustained a traumatic injury. In October 1958, he was assessed with follicular conjunctivitis and possibly early viral keratoconj[unctivitis]. In June 1959, he complained of throbbing pain in his right eye. On June 1960 service separation examination, his vision was noted to be 20/40 in the right eye (corrected to 20/20) and 20/30 in the left eye (corrected to 20/20); his eyes were evaluated as abnormal for blepharitis, noted as NCD (not considered disabling). Postservice treatment records document that the Veteran has a diagnosis of bilateral glaucoma. Following an April 2008 VA eye examination, a VA examiner in May 2008 reviewed the claims file, noted the Veteran's current diagnosis of primary open angle glaucoma in both eyes, and opined that it was less than 50 percent likely that the Veteran's glaucoma was related to his softball injury in service, because: (1) the glaucoma was affecting both eyes, not just the softball injury (left) eye; (2) he had other risk factors for open angle glaucoma (such as a sibling having it); and (3) he did not have any other findings consistent with a traumatic type of glaucoma. In an undated statement submitted in November 2008, a private ophthalmologist (Dr. S.S.) noted that the Veteran reported that "he was hit in both eyes in the 1950's with a baseball on separate occasions" and that his glaucoma could have been induced by the blunt trauma "but can not be for sure either way." Dr. S.S. added that in some cases, glaucoma could be induced by blunt trauma, but that he could not be 100 percent certain if the Veteran's glaucoma was related to his old injury. Regarding the claim of service connection for glaucoma, the Joint Motion cites to the "Private Treatment Record" [in actuality service eye clinic] diagnoses of follicular conjunctivitis and possible early viral keratoconjunctivits (apparently alleging a nexus to the current diagnosis of glaucoma). Once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, a new eye examination to ascertain the nature and likely etiology of any current bilateral glaucoma is needed; the examiner should consider and address all relevant STRs as well as the Veteran's theory that he burned both of his eyes as a welder in service (and whether such injury would constitute trauma that could have caused his current bilateral glaucoma). See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Asthma with Allergies The Veteran's STRs document he received treatment for colds, upper respiratory infections, skin rashes, and chronic dermatitis in service. Postservice treatment records document that the Veteran has diagnoses of allergic rhinitis, asthma, and dermatitis. In a November 2008 statement, a private physician (Dr. V.E.T.) noted that the Veteran had been receiving immunotherapy since approximately 1968 according to the notes from one of the previous doctors who had seen him at the Wabash Outpatient Clinic (the private facility which Dr. V.E.T. was associated with). Dr. V.E.T. also stated that the Veteran's asthma diagnosis was first noted in 1994. Dr. V.E.T. further noted that the Veteran received allergy shots at the Wabash Outpatient Clinic through the 1980s, and that a 1998 letter noted that the Veteran had been receiving approximately 30 years of immunotherapy. In an October 2010 statement, the Veteran asserted that he was treated numerous times for asthma/allergies while in the military, and that in 1960 he was using over-the-counter medications to treat unknown conditions that were not identified as allergies until 1967 by the Wabash Hospital Association. He stated that he had received treatment since then and still took allergy shots at present. In a November 2010 statement, a private physician (Dr. H.E.B.) noted that the Veteran had a history of allergic rhinitis, asthma, and atopic dermatitis for over 47 to 52 years. In March 2011 and May 2011, VA attempted to obtain treatment records pertaining to the Veteran from Dr. H.E.B.; a note reflects that Dr. H.E.B.'s office indicated that the records were sent, but not received by VA. On remand, another attempt should be made to secure such records. In light of the above, appropriate examinations to ascertain the nature and likely etiology of any current asthma or allergy disability are needed; the examiner should consider and address all relevant STRs. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Regarding the claim of service connection for asthma with allergies, the Joint Motion also indicates that an examination is needed to secure a medical opinion as to whether skin rashes noted in service are the same [apparently as the rashes associated with allergies]. Cardiac Disability Pursuant to the Board's August 2012 remand instructions, the AMC (in an August 2012 letter) asked the Veteran to identify all sources of evaluation and/or treatment he had received for a cardiac disability, specifically including from private cardiologist Dr. K.P. Thereafter, in August 2012, the Veteran submitted a signed release form authorizing VA to obtain private treatment records from Dr. K.P. from the Decatur Memorial Hospital in Decatur, Illinois. However, records obtained from that facility do not reflect Dr. K.P. as a treating provider. The Board has determined through Internet research that Dr. K.P. practices instead at a private facility called Prairie Cardiovascular in Decatur, Illinois. On remand, another attempt to secure such records from the proper facility/provider is indicated. Accordingly, the case is REMANDED for the following: (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. The RO should ask the Veteran to identify the provider(s) of any additional (records of which are not already associated with the record) treatment or evaluation he has received for his claimed disabilities, and to provide all releases necessary for VA to secure any private records of such treatment or evaluation (including from Dr. K.P. [at Prairie Cardiovascular in Decatur, Illinois], and from Dr. H.E.B.). The RO should obtain complete records of all such treatment and evaluation from all sources identified. If any records requested are unavailable, the reason must be explained for the record. In addition, the RO should secure for the record complete copies of the clinical records of all VA treatment the Veteran has received for his claimed disabilities which are not already of record (including any treatment dating as early as 1981 or earlier). If any records requested are unavailable, the reason must be explained for the record. 2. After the development sought above is completed, the RO should arrange for the Veteran to be examined by an ophthalmologist to ascertain the nature and likely etiology of his bilateral glaucoma. The Veteran's entire record (to include the claims file with this remand and the records in Virtual VA) must be reviewed by the examiner in conjunction with the examination. Any tests or studies indicated should be completed. Based on review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following: Based on the factual evidence of record, what is the likely etiology for the Veteran's current diagnosis of bilateral glaucoma? Specifically, is it at least as likely as not (a 50% or better probability) that such disability is related to (was incurred or aggravated during) the Veteran's active service, to include as due to injury/trauma therein, or as related to the complaints and findings in service noted above? (a) The examiner must specifically consider and address the relevant findings noted in the Veteran's STRs, to include blepharitis in both eyes, the traumatic injury to the left eye, follicular conjunctivitis and possible early viral keratoconj[unctivitis], throbbing pain in his right eye, and the eye abnormalities noted on June 1960 service separation examination. (b) The examiner must specifically consider and address the Veteran's theory that he burned both of his eyes as a welder in service, and opine as to whether it is at least as likely as not (a 50% or better probability) that such injury was trauma that could have caused his current glaucoma. The examiner must explain the rationale for all opinions, citing to supporting clinical data, as appropriate. 3. Also after the development sought in Instruction #1 is completed, the RO should arrange for the Veteran to be examined by an appropriate physician to ascertain the nature and likely etiology of any current asthma or allergy disability. The Veteran's entire record (to include the claims file with this remand and the records in Virtual VA) must be reviewed by the examiner(s) in conjunction with the examinations. Any tests or studies indicated should be completed. Based on review of the record and examination of the Veteran, the examiner(s) must provide opinions that respond to the following: (a) Please identify (by medical diagnosis) each asthma or allergy disability entity found. [If no such asthma or allergy disability is diagnosed, reconcile that conclusion with the medical evidence cited above.] (b) Please identify the most likely etiology for any/each asthma or allergy disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that such was incurred or aggravated during the Veteran's active service? The examiner(s) must specifically consider and address the relevant findings documented in the Veteran's STRs, to include colds, upper respiratory infections, skin rashes, and chronic dermatitis. The examiner should specifically consider/address the stated theory in the Joint Motion that the Veteran's rashes noted in service are the same [as those associated with his claimed allergy disability(ies)]. The examiner(s) must explain the rationale for all opinions, citing to supporting clinical data, as appropriate. 4. The RO should ensure that all development sought is completed, arrange for any further development suggested by additional evidence received, and then review the record and readjudicate the claims on appeal. If any remains denied, the RO should issue an appropriate supplemental statement of the case (SSOC) and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ GEORGE R. SENYK 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).