Citation Nr: 1332882 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 09-33 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for vision loss, left eye. 2. Entitlement to a compensable initial evaluation for urinary tract infection. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from May 1983 to March 1986. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Based upon its review of the Veteran's claims file, the Board finds that the duty to assist the Veteran has yet to be fully met with regard to these claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran is seeking service connection for vision loss of his left eye. He contends that trauma experienced during service has caused optic nerve atrophy, which is the cause of his current left eye vision impairment. The Veteran's service treatment records show that the Veteran experienced a one centimeter laceration over the left eye after being struck over the head with a beer bottle in November 1985. Eight stitches were required. He also had a cut to the forehead medial to the left eyebrow in January 1986 following being struck with a locker door. Four stitches were required at that time and the Veteran was noted to have been dizzy following the initial impact. The Veteran's March 1986 separation examination shows that he separated from service without notation of any residuals to those in-service lacerations around the left eye, and with a notation of 20/20 vision in the left eye. In February 2008, a VA examiner confirmed the Veteran has having optic nerve atrophy of the left eye, with resultant defective visual acuity of 20/70, defective color vision and associated visual field loss. As to the etiology of this disability, the examiner observed that the Veteran did have "a minor blunt trauma to the left eyebrow with no loss of consciousness reported" in service. The examiner was seemingly referencing one instance of trauma, rather than two, as shown in the record. The examiner also did not mention the notation on the service treatment records at the time of the incident involving the locker door showing that the Veteran experienced dizziness at the time he was struck. The examiner also confirmed that the Veteran experienced no other trauma in his lifetime, but that "[a]t this point, it is highly unlikely or least as likely that the reported injury occurring almost 20 years ago would elicit itself now." There are several problems with this analysis. First, the examiner's indication that it is "highly unlikely or least as likely" is ambiguous. It is unclear whether the examiner is opining that the in-service trauma did or did not cause current optic nerve atrophy, or whether it is at least as likely as not. The examiner also confirmed that the in-service trauma to the eye was the only experience of such trauma for the Veteran, but did not discuss what could be the cause of the current disability, if the opinion is that the in-service trauma did not cause it. The examiner also suggested that blunt trauma nerve atrophy is usually immediately present or soon after, but did not discuss when the Veteran's atrophy may have initially manifested. The Veteran separated from service just a few months after the second traumatic incident. Finally, as noted, it is unclear whether the examiner observed that there were, in fact, two instances of trauma in service near the left eye, and that the Veteran was indeed struck hard enough to have experienced dizziness during one of the instances of trauma. For these reasons, the examiner's analysis is inadequate. 38 C.F.R. § 3.159(c)(4) (2013); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate). A remand for a new examination and opinion is necessary. With regard to the Veteran's claim for a compensable initial evaluation for urinary tract infection, VA's duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). This includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). In this case, the Veteran last underwent a VA examination in conjunction with his claim for an initial compensable rating for urinary tract infection in October 2009, four years ago. Since that time, evidence has been added to the record, which suggests that the Veteran's disability may have worsened. At the time of his VA examination, the Veteran reported that during the day he urinated two times at intervals of eight hours and during the night he urinated three times at intervals of two hours. He also reported no problems starting urination, urinary incontinence, or any other symptoms. The same symptoms of urinary frequency were reported in a November 2010 VA outpatient treatment note. At the May 2013 hearing before the Board, the Veteran stated that he had to get up four to five times per night to urinate, and that during the day he urinated approximately every thirty minutes. He also reported split stream symptoms, as well as having experienced blood in his urine and "dribbling." More recently, the Veteran submitted a copy of an October 2013 outpatient note, which shows that the Veteran underwent cystoscopy due to irritative voiding. The symptoms reported at the hearing and shown in the recent outpatient notes suggest that the Veteran's urinary tract infection symptoms worsened since the October 2009 VA examination. A new VA examination is necessary where there is evidence, including the Veteran's statements, that his service-connected disabilities have worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey, 6 Vet. App. at 381. The Board therefore concludes that additional VA examination is needed to provide a current picture of the Veteran's service-connected urinary tract infections, to include any compensable residual disabilities. 38 C.F.R. §§ 3.326, 3.327 (2013). As to both claims, updated VA outpatient records are required. The Veteran recently submitted a photocopy of an October 2013 VA treatment note from a Urology Clinic in the South Texas Veterans Healthcare System (STVHCS). Prior to this date, the record most recently contains treatment records from the Frank M. Tejeda Outpatient Clinic dated in November 2010. It appears that relevant VA outpatient treatment records are missing from the claims files. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive 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). Under these circumstances, the RO must, with the assistance of the Veteran, obtain all relevant VA clinical records dated since November 2010. Finally, subsequent to the issuance of the August 2009 and December 2011 statements of the case with regard to both claims under appeal, additional evidence, including post-service private treatment records, as well as VA outpatient treatment notes were associated with the claims file. While some of this evidence does not relate to or have a bearing on the issues on appeal, some pertinent evidence was not reviewed by the RO in conjunction with the issues on appeal. RO consideration of the additional evidence was not waived. Accordingly, the originating agency must be given the opportunity to review this evidence before the Board can enter a decision. See 38 C.F.R. § 20.1304(c) (2013). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include any VA or non-VA evidence. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the RO must obtain the Veteran's updated treatment records since November 2010 from the Frank M. Tejeda Outpatient Clinic and from STVHCS. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claims; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Once the record is developed to the extent possible, afford the Veteran a VA examination by an ophthalmologist to determine the nature and etiology of all left eye disorders present during the period of the claim. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records were reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Based on a review of the evidence of record, the clinical evaluation, and with consideration of the Veteran's statements, the examiner must state whether the Veteran's left eye optic nerve atrophy, defective visual acuity, defective color vision, visual field loss, or any other left eye disability present, was caused by the two instances of trauma to the left eye during service. The examiner must discuss the two instances of trauma during service, one of which produced dizziness, as well as the fact that the Veteran has experienced no trauma since that time, and assess the cause of the Veteran's current disability, to include a determination as to whether it was caused in service. The examiner must address the Veteran's lay statements. The examiner's rationale should not merely discuss general findings in the medical community, but must analyze the facts and medical evidence in this Veteran's case. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The Veteran must be afforded a comprehensive examination to determine the current severity of his service-connected urinary tract infections. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. The examiner must address any voiding dysfunction, urinary frequency, obstructed voiding, and urinary tract infection present. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for any VA examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 5. The examination reports must be reviewed to ensure that each is in complete compliance with the directives of this remand. If either report is deficient in any manner, the RO must implement corrective procedures. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).