Citation Nr: 1330997 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 12-12 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right eye disability. 2. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1976 to May 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 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 Prior to considering the claims of service connection for a right eye disability and a low back disability on the merits, further development of the record is necessary to comply with VA's duty to assist in the development of facts pertinent to the claims. 38 C.F.R. § 3.159 (2013). With regard to the Veteran's claim for a right eye disability, the Veteran has not been afforded a VA examination. On his March 1976 entrance examination, the Veteran's visual acuity without correction in the right eye was recorded as 20/400 and a note indicates that the Veteran had "defective distant and near vision." The Veteran's physical profile for his eyes was "2," indicating that he had a medical condition or physical defect that may require some activity limitations. Service treatment records dated May 1976 show that the Veteran's visual acuity without correction in the right eye was 20/20 and includes a notation that reads "no spectacles needed." On his March 1979 separation examination, the Veteran's vision was noted as 20/20 in the right eye. The Veteran was given a normal physical profile. Post-service treatment records indicate that the Veteran reported that trauma to his right eye during childhood resulted in low vision. In May 2009, a private examiner indicated that the Veteran had light perception only in his right eye and attributed the Veteran's reduced vision to long-standing amblyopia. VA examinations in January, April, and June 2010, indicated that the Veteran's visual acuity without correction in his right eye was 20/400. Given the inconsistencies in the Veteran's in-service examinations and post-service diagnoses, the Veteran should be afforded a VA examination to determine the nature and etiology of any right eye condition. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). The examiner should also address whether the Veteran had a right eye disability that preexisted service, and if so, whether any such disability was aggravated during service. Regarding the Veteran's low back disability claim, the Veteran contends that he "fell down some stairs" and hurt his back on active duty. Service treatment records note a complaint of back pain and diagnosis of a possible strain in February 1978, and a fall and diagnosis of a cervical strain in February 1979. In an October 2009 VA examination, the Veteran stated that he has had intermittent low back pain that has become progressively worse over the years and is constant now. The examiner diagnosed lumbosacral strain and opined that the Veteran's current strain is not related to service, in part because there was no continuity of care to indicate that the Veteran has a chronic low back condition. Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). The basis of the examiner's opinion is inadequate because he does not appear to have considered the Veteran's lay statements regarding his continuous symptoms since service. Thus, another examination is required. Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for right eye condition or low back disability since service. After securing the necessary release, the RO should obtain these records, including any outstanding VA treatment records. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of any right eye disability. The claims folder and any pertinent records should be made available to the examiner for review. The examiner is requested to review the record and respond to the following: (a) Identify all current right eye pathology. (b) Does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the Veteran had a right eye disability that existed prior to his entry into active duty? (c) If the answer is yes, does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the preexisting right eye disability was not aggravated by service or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. (d) If the answer to either (b) or (c) is no, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's right eye disability had its onset in service? 3. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of any low back disability. The claims folder should be made available to the examiner for review. Based on the examination and review of the record, the examiner should respond to the following: Is at least as likely as not (a 50 percent probability or greater) that the diagnosed disorder is related to the Veteran's active military service. The examiner is specifically informed of the Veteran's statement that he has had intermittent low back pain since service that has become progressively worse over the years and is now constant. The medical basis for all conclusions reached should be provided. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. The RO should then review the record, and readjudicate the claims of service connection for a right eye disability and a low back disability. If any claim remains denied, issue an appropriate SSOC, and afford the Veteran and his representative the opportunity to respond before the case is 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). 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). ____________________________________________ M. E. LARKIN 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).