Citation Nr: 1332780 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 08-12 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for left eye optic neuropathy and/or glaucoma, to include as secondary to a service-connected left eye chalazion. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from December 1943 to April 1946. This matter comes to the Board of Veterans' Appeals (Board) from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran timely appealed the denial, and in a May 2012 decision, the Board denied entitlement to service connection for left eye optic neuropathy and/or glaucoma, to include as secondary to a service-connected left eye chalazion. The Veteran appealed the Board's 2012 decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2013 Joint Motion for Remand (Joint Motion), the Court vacated the Board's decision and remanded the claim for re-adjudication. Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND As an initial matter, the Board notes that the RO does not appear to have sought hospital records, morning reports, unit histories, or any other alternate source of records to verify the Veteran's claimed left eye injury with subsequent hospitalization at the Guadalcanal Hospital in 1944. In that connection, the Board points out that hospital records are often stored separately from the Veteran's outpatient service treatment records and thus require a separate search request. Thus, on remand, the AOJ must search for any relevant records-including but not limited to hospital records of the Veteran's claimed treatment at the Guadalcanal Hospital in the latter part of 1944, as well as morning reports, unit histories, and any other evidence that could substantiate his claim of having been injured in a bomb explosion at an ammunition dump. Relevant evidence of record consists of the Veteran's service treatment records, as well as multiple VA examinations and records of treatment with both private and VA treatment providers. A review of the Veteran's service treatment records shows that his entrance examination was negative for an eye abnormality. Records from September 1944 show that the Veteran was seen for an intestinal problem at the hospital on Guadalcanal. At his April 1946 separation examination, the significant diseases and wounds included "left eye bad - 1946." However, the only eye abnormality noted on examination was the chalazion of the left upper lid. His uncorrected vision was 20/20 in each eye. Following discharge from service, the Veteran submitted his initial claim in December 1946, including a claim for a "knot growing in the left eye." Under the portion of the claims form that asked the Veteran to list any treatment received in service, he reported only being hospitalized in early 1945 for problems with his chest and stomach. He added that during this time he had a knot taken off his right eye at the dispensary. Service connection for a chalazion of the left eye was established in a December 1946 rating decision. Private treatment records reflect ongoing treatment for eye complaints beginning in November 1991, at which time the Veteran stated that he had sustained bomb fragments to his right eye in service and complained of experiencing a sensation of a foreign body in both eyes. The examiner noted that the Veteran's vision was 20/20 and diagnosed him with a conjunctival cyst. Records from February 1995 note that the Veteran was seen for a sudden recent onset of pain in his left eye. A corneal abrasion of the left eye was diagnosed. May 1996 records again note the Veteran's complaint of having the sensation of a foreign body in his left eye. He continued to be seen several times a year for complaints concerning both eyes. To that end, private medical records dated in January 2003 include a first diagnosis of glaucoma, and an April 2005 private treatment note indicates that the Veteran reported having been hit with bomb fragments in 1944 at Guadalcanal. He reported that he had been hospitalized and had some eye surgery at that time. His diagnoses included glaucoma and a corneal scar. Similarly, VA treatment records from 2006 to 2007 reflect treatment for complaints of decreased vision in the left eye, including diagnoses of traumatic optic atrophy versus primary open-angle glaucoma in the left eye, and cataracts that were becoming more visually significant. In January 2006, the Veteran reported having had poor vision in his left eye since the claimed in-service shell fragment injury; at that time, he was noted to have pressure elevation in the left eye, with a questionable component of traumatic optic neuropathy with nerve pallor. Similarly, in December 2006, the Veteran was diagnosed with traumatic optic atrophy based on his report of the in-service left eye injury. This diagnosis has carried through his subsequent VA ophthalmological treatment, although a physician did opine in February 2007 that the optic neuropathy and glaucoma are not likely due to any previous "blunt force trauma to the left eye." In addition, the Veteran has submitted a statement from a private physician, dated in January 2006, in which the physician noted that he has treated the Veteran since 1991. The doctor said that the Veteran had severe glaucoma in his left eye only and noted that it was unusual to have glaucoma in only one eye. Thus, the physician opined, the disorder "may be related" to the injury to the left eye described by the Veteran. The Veteran and his representative have also submitted numerous statements attesting to the Veteran's contention that he experienced a shell fragment injury to the left eye when a bomb exploded at an ammunition dump he was guarding while stationed on Guadalcanal in the latter part of 1944. The Veteran was afforded a VA examination of his eyes in July 1998. At that time, he reported a history of a foreign body in his left eye that was removed on Guadalcanal approximately 50 years ago. He denied any current trouble with his left eye at the time, and said that his only complaint was occasional tearing of the left eye. He reported that he had been told by a private doctor that he had mild cataracts but that no treatment was required. On examination, the Veteran's corrected vision was 20/20 bilaterally. The examiner opined that the Veteran had an essentially normal ophthalmic examination, remarkable only for trace nuclear sclerotic cataracts which were not visually significant and were consistent with his age. There was no evidence of previous trauma. The examiner stated that in all likelihood the foreign body injury reported by the Veteran consisted of a superficial foreign body that was removed without sequelae. The Veteran underwent another VA eye examination in May 2005. At that time, he complained of loss of vision for "a couple of years" and occasional twinges of pain in the left eye of several years' duration. On examination, his uncorrected vision was in the realm of 20/400 in each eye, with the right eye correctable to 20/20 and the left to 20/100. The left eye had marked constriction of the visual field to confrontation. The impression was glaucomatous cupping and optic atrophy of the left eye of undetermined duration. No etiological opinion was provided. At a January 2007 VA eye examination, the examiner reviewed the Veteran's claims folder and noted problems including questionable glaucoma of the left eye, a "few scattered corneal scars," and a previous chalazion of the left eye. The Veteran reported a history of bomb shell fragments that hit his left eye in service. The examiner noted that he reported having been treated acutely with resolution of apparent pathology. Following examination of the Veteran and review of the record, the examiner diagnosed optic neuropathy of the left eye. The examiner opined that this diagnosis was not related to the previous diagnosis of chalazion, pointing out that there was no known medical link between the two entities. However, after review of the medical records, the examiner noted the July 1998 VA examination that had documented 20/20 vision bilaterally with asymmetrical intraocular pressure measurements and stated that if neuropathy had developed secondary to the previous fragment trauma, the disease would have most likely manifested much earlier than 1998. This raised the question as to whether the optic neuropathy was related solely to the glaucoma and the slightly asymmetric pressures, or if another compounding systemic health factor contributed to a possible ischemic event later on. The examiner noted that the Veteran was being followed for his glaucoma, which had an asymmetric and unusual presentation. The examiner concluded that the current neuropathy and visual loss were not due to the previous chalazion but stated that he could not determine with certainty whether the current disabilities were related to previous shell fragment trauma. The claims folder was returned to the January 2007 VA examiner in March 2010 in order to obtain a clarification of his original opinion. At that time, the examiner noted that there was no documented evidence of the presumed shell fragment trauma to the left eye anywhere in the medical record. The findings of normal ocular health at the July 1998 VA examination were again noted. Private medical records were also reviewed and noted to reflect a diagnosis of glaucoma. The examiner opined that it was less likely than not that the presumed in-service trauma caused the glaucoma and optic atrophy of the left eye. The examiner said that it was widely known that blunt trauma can cause angle recession/traumatic glaucoma. Typically but not always, the examiner noted, this trauma causes visible changes to the structures that can be seen clinically. However, he noted, no such findings were present as recently as November 2009. The examiner also noted that traumatic glaucoma can manifest years after the initial insult, but it would be exceptionally rare for this to happen more than 50 years following the presumed insult, especially in light of normal examinations as recently as 1998 and 2003 by different physicians. The examiner concluded that the optic nerve pallor combined with the cupping and central vision loss makes it much more likely that some other acute optic neuropathy occurred between the years of 1998 and 2005 that caused the current clinical picture. If optic atrophy had been due to traumatic optic neuropathy, the examiner concluded, the vision loss would have occurred acutely and would have been discovered in any number of examinations done over the years, not first observed over 60 years later in 2005. A second addendum was obtained from the January 2007 examiner in October 2010. At that time, he was asked to comment on whether or not the shell fragment wound could have contributed to the cause of the currently diagnosed optic neuropathy or glaucoma of the left eye. The examiner stated that he was unable to determine the etiology of the vision loss without resorting to speculation as to whether or not the shell fragment injury contributed to the current disorder. He said that the medical justifications for this opinion were the same ones outlined in March 2010 and added that the conflicting evidence and examination findings from multiple eye care specialists between 1998 and 2005 did not afford the ability to pinpoint the exact etiology of the Veteran's vision loss and current findings, and it would be speculative to assume it was related to previous injury to the left eye. The Board notes that, in the January 2013 Joint Motion, the parties instructed the Board to provide the Veteran and his representative with the opportunity to be heard on the issue of the Veteran's credibility regarding the claimed in-service shell fragment wound to the left eye with subsequent surgery. In that connection, the Board notes that the Veteran's service record shows that he served in the Quartermaster Corps of the Army. His military occupational specialty was Fork Lift Operator. His awards and decorations included the Asiatic Pacific Service Medal, the Philippine Liberation Ribbon, the World War II Victory Medal, and the Good Conduct Medal. Under the heading "Battles and Campaigns," the WD AGO Form 53, 55 states "none." Thus, there is no evidence that the Veteran ever participated in combat, and he has never contended otherwise. Regardless, he has contended that he incurred the eye injury when he was hit with shell fragments from a "surprise bomb attack" sometime in 1944, while he was guarding an ammunition dump on Guadalcanal. Furthermore, the Board takes judicial notice that the battle for Guadalcanal ended with the Japanese evacuation of the island in February 1943. The Veteran did not enter service until December 1943. His WD AGO Form 53, 55 shows that he left the continental United States in July 1944 and arrived in the Pacific Theater in August 1944. This is consistent with his service treatment records, which begin to show treatment for various illnesses and complaints at Guadalcanal in August 1944. It also demonstrates that the Veteran first arrived at Guadalcanal a year and a half after the end of the battle, and during a time in which it was a thousand miles behind the front lines. The conclusion that one must make is that the opportunity to exposure to enemy explosions and shell fragments was very remote. Finally, although the service treatment records show that the Veteran was treated on Guadalcanal for many complaints, including urinary and back problems, there is no evidence whatsoever that he was treated for a shell fragment wound at any time while stationed on Guadalcanal, as he has contended. Following service, the Veteran's initial claim for service connection for a "knot" on his eye sounds consistent with the chalazion, and indeed this claim resulted in service connection for that disability. There was no mention of a shell fragment wound at that time, though the Veteran listed multiple other maladies and specifically noted eye problems in service. The Veteran's first recorded mention of a shell fragment wound to the left eye was not until 1991, which is 47 years after the purported injury. Because the Veteran and his representative have not been explicitly provided the opportunity to be heard concerning the question of the Veteran's credibility as pertains to the alleged in-service left eye injury and surgery, on remand the agency of original jurisdiction (AOJ) must provide the Veteran and his representative with such an opportunity. This is in accord with the mandates of the January 2013 Joint Motion. Then, if the development identified above results in corroboration of the Veteran's contentions, or if he or his representative submit additional credible evidence reflecting in-service injury, the AOJ should obtain a new VA examination to determine the nature and etiology of the current left eye disability. See generally Jones v. Shinseki, 23 Vet. App. 382 (2010); Barr v. Nicholson, 21 Vet. App. 303 (2007). In view of the foregoing, the case is REMANDED for the following action: Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested. 1. Send the Veteran a letter requesting that he provide sufficient information and, if necessary, authorization to enable VA to obtain any additional pertinent evidence not currently of record. The Veteran must also be invited to submit any pertinent evidence in his possession, and the AOJ must explain the type of evidence VA will attempt to obtain as well as the type of evidence that is his ultimate responsibility to submit. The Veteran must also be provided specifically with notice concerning the information and evidence needed to substantiate a service connection claim on the basis of both direct and secondary service connection. 38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995). He and his representative must further be given specific opportunity to provide statements concerning the Veteran's credibility as pertains to the events surrounding the claimed in-service left eye injury. 2. Undertake any necessary development to independently verify the alleged bomb explosion that caused the Veteran's claimed left eye injury, to include contacting JSRRC or other appropriate agency. The search must specifically include a search for operational reports, unit and organizational histories, daily staff journals, morning reports, after-action reports, combat or command chronologies, and casualty records, as appropriate. Any additional action necessary for independent verification of the alleged explosion, to include follow-up action requested by any contacted entity, must be accomplished. If the search for corroborating information leads to negative results, this must be documented in the claims file and the Veteran must be notified of this fact, of the efforts taken to obtain the information, and of any further action to be taken. 3. Take measures to obtain hospital reports, including in particular hospital records from the Veteran's treatment at the Guadalcanal Hospital, reflecting treatment or evaluation of the Veteran during 1944. All ophthalmology reports, especially any reports of surgery on the Veteran's left eye to address a shell fragment wound, should be sought. Any necessary authorizations from the Veteran should be obtained. 4. If, and only if, the above-requested development results in evidence to corroborate the Veteran's contention that he experienced a shell fragment injury to his left eye in service, schedule the Veteran for an examination to determine the etiology of any currently diagnosed left eye disorder (other than the already service-connected chalazion). The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. Any indicated studies should be performed. The examiner must provide a diagnosis for each left eye disability, other than chalazion, that the Veteran currently experiences. For each such disability diagnosed, indicate whether it is at least as likely as not (a 50% or higher degree of probability) that it had its clinical onset in service or is otherwise related to active service. In addition, indicate whether it is at least as likely as not that any such disability was caused by or has been chronically worsened by the Veteran's service-connected left eye chalazion. If worsened, specify the baseline of left eye disease prior to aggravation, and the permanent, measurable increase in any such left eye disease resulting from the service-connected left eye chalazion. The examiner must reconcile all opinions with the evidence in the claims folder, to include in particular a thorough discussion of the following: * The July 1998 VA eye examination in which the Veteran denied current left eye problems and the examiner found the in-service injury to have been superficial and resolved without sequelae. * The left corneal scarring first diagnosed in July 2003 and confirmed by VA examination in January 2007. * The private physician's January 2006 letter stating that the Veteran had sought eye treatment since 2001 and that his current left eye problems "may be related" to the in-service injury. * The VA diagnoses of traumatic optic atrophy in December 2006, October 2007, and April 2008. * The opinion of the Veteran's VA treatment provider in February 2007 that the Veteran's current optic neuropathy and glaucoma are not likely due to "blunt force trauma to the left eye." * The findings of the VA examiner in January 2007 and July 2009 that the Veteran's left eye disorder was not caused by his left eye chalazion. * The VA examiner's March 2010 opinion that the current left eye disorder is not linked to the in-service eye injury. * The VA examiner's October 2010 opinion, in which he stated that he was unable to determine the "exact etiology" of the Veteran's left eye disorder without resorting to speculation. The examiner must provide a comprehensive report, including a complete rationale for all conclusions reached. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner must explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she must comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ must ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 5. After completion of the above, re-adjudicate the Veteran's claim for entitlement to service connection for left eye optic neuropathy and/or glaucoma, to include as secondary to a service-connected left eye chalazion. Such re-adjudication must also include consideration of any evidence received pursuant to this remand. If the benefit sought is not granted in full, the Veteran and his representative must then be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. 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). 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. 2013). _________________________________________________ THOMAS J. DANNAHER 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) (2013).