Citation Nr: 1331837 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-19 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for retinopathy, to include as secondary to service-connected diabetes mellitus, type II. 2. Entitlement to a rating in excess of 20 percent for degenerative changes of the lumbar spine. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In March 2013, the Veteran and his wife testified before the undersigned during a Board hearing held at the RO. A transcript of the hearing is associated with the claims file. 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 on his part. REMAND Unfortunately, a remand is required with respect to the Veteran's claims on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide his claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). Concerning the Veteran's claim for service connection for retinopathy, the Veteran testified that he sees his private doctor in Springfield, Illinois, every three months because the doctor has found changes in his retinopathy, that he has trouble reading, and that he has to change his eyeglasses on a regular basis. He also complained that the VA examiner in January 2009 did not find retinopathy. The Board observes that the report of the January 2009 VA examiner indicated that the Veteran, based on a review of a private examination report, did not have retinopathy and that his diabetes mellitus did not cause vision problems. It appears that the examiner was not asked to conduct a separate VA examination, but merely to comment on the private examination. In addition, the qualifications of the January 2009 VA examiner are not apparent. The Board cannot find this January 2009 VA medical opinion adequate. Therefore, on remand the RO/AMC should schedule the Veteran for a VA examination to determine the nature, extent, and etiology of any claimed retinopathy, to include whether any diagnosed retinopathy is secondary to the Veteran's service-connected diabetes mellitus, type II. Concerning the Veteran's claim for a higher rating for his service-connected low back disorder, the Board notes that during his recent Board hearing the Veteran testified that he's had at least three surgeries on the low back and the latest was in 2010. He also appeared to answer in the affirmative when asked whether he felt worse or no better since his last back operation. See hearing transcript at pp. 11-12, 18. The Board also notes that the Veteran's most recent low back VA examination was in January 2009, now nearly five years old. It is appropriate that his most recent symptoms be evaluated. VA will obtain a new medical examination where, as here, the last medical examination may be too remote in time to portray the current nature, extent, and severity of the disability on appeal. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). On remand, therefore, a new VA examination should be obtained to determine the current severity of the Veteran's service-connected low back disorder. Before any examination of the eyes or back is scheduled, however, the RO/AMC should ask the Veteran and his representative for releases to associate relevant private treatment records with his claims file. During his Board hearing, the Veteran testified that he saw private providers for both his claimed retinopathy and his service-connected low back disorder. See hearing transcript at pp. 13-15. The Veteran apparently does not obtain treatment for either disorder at a VA facility. To ensure due process for the Veteran, VA will make another attempt to obtain relevant private medical records before adjudicating both his service connection claim and his higher rating claim. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall contact the Veteran and his representative and ask them to specify all private and VA medical care providers who have treated him for his disorders. After the Veteran has signed the appropriate releases, the RO/AMC shall then attempt to obtain and associate with the claims file any records identified by the Veteran that are not already associated with the claims file, in particular any records of treatment or evaluation from a private Springfield, Illinois, clinic where the Veteran is now seen approximately every three months for his retinopathy (referred to on page 15 of the Board hearing transcript) and any records of treatment or evaluations from the private physicians who see him for his low back disorder (referred to on page 13 of the Board hearing transcript). All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. After completion of the above development, the RO/AMC shall schedule the Veteran to undergo a VA examination by an ophthalmologist to determine the nature, extent, onset, and etiology of his claimed retinopathy disorder on appeal, to include as secondary to his service-connected diabetes mellitus, type II. The claims file and a copy of this Remand shall be made available to and reviewed by the examiner. The examiner shall note such review, and identify important information gleaned therefrom, in an examination report. All indicated studies deemed necessary shall be performed, and all findings shall be reported in detail. The examiner is requested to review all pertinent records associated with the claims file, including the transcript of the Veteran's March 2013 Board hearing, and following this review and the examination offer opinions as to the following: a) Whether any retinopathy disorder is currently manifested, and, if so, a diagnosis of such disorder should be made; and b) If retinopathy is diagnosed, whether it is at least as likely as not (a 50 percent probability or more) that any currently manifested retinopathy is etiologically related to the Veteran's period of active service from February 1967 to February 1970; or c) Whether it is at least as likely as not that any currently manifested retinopathy disorder was caused by his service-connected diabetes mellitus, type II; or in the alternative whether it is at least as likely as not that his diabetes mellitus, type II, disorder aggravated (i.e., permanently worsened) any currently manifested retinopathy disorder found on examination. If aggravation is found, the degree of aggravation must be specifically identified. 3. After completion of the development referred to in paragraph 1, the RO/AMC shall schedule the Veteran to undergo an appropriate VA examination to determine the severity of his lower back disability. The claims file, including the transcript of the Veteran's March 2013 Board hearing, and a copy of this Remand shall be made available to and reviewed by the examiner. The examiner shall note such review, and identify important information gleaned therefrom, in an examination report. All indicated studies deemed necessary shall be performed, and all findings shall be reported in detail. The rationale for any opinions expressed shall be provided in the examination report. 4. A rationale or explanation is requested for all opinions. If any examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. Thereafter, readjudicate the Veteran's claims on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case, afforded a reasonable opportunity to respond, and the case should thereafter be returned to the Board for the purpose of appellate disposition. 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). 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). _________________________________________________ F. JUDGE FLOWERS 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).