Citation Nr: 1333840 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 05-24 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for a disability manifested as a growth on the neck. 3. Entitlement to service connection for burns. 4. Entitlement to service connection for alcoholism, claimed as alcohol treatment. 5. Entitlement to service connection for a refractive error, claimed as vision problems. 6. Entitlement to a nonservice-connected pension. REPRESENTATION Veteran represented by: American Red Cross ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had honorable active service from October 9, 1970 to March 16, 1975. The character of the Veteran's service from March 17, 1975 to February 22, 1979 is a bar benefits based on that period of service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the claims on appeal. In November 2007, the Board remanded the instant matters to the Appeals Management Center (AMC) for additional development. A review of the Virtual VA claims processing system does not reveal any additional documents pertinent to the claims on appeal. The Board's decisions as to the claims for service connection for a left shoulder disorder, a disability manifested by growths on the neck, burns and alcohol treatment, as well as the claim for a nonservice-connected pension, are set forth below. The remaining claim on appeal is addressed in the remand following the order; this matter is being remanded to the RO, via the AMC, in Washington, D.C. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claims herein decided have been accomplished. 2. The Veteran does not have a currently diagnosed left shoulder disorder. 3. The Veteran does not have a currently diagnosed disability manifested by a growth on the neck. 4. The Veteran does not have a currently diagnosed disability related to burns. 5. Direct service connection for the Veteran's diagnosed alcohol dependence is prohibited under pertinent VA law and regulations. 6. The Veteran has been imprisoned in a state penal institution throughout the pendency of this case. 7. At the time of his incarceration, the Veteran was not in receipt of VA pension benefits. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for a disability manifested by a growth on the neck have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. The criteria for service connection for a disability related to burns have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 4. The criteria for service connection for alcoholism have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.303 (2012). 5. The criteria for establishing basic eligibility for VA nonservice-connected pension benefits have not been met. 38 U.S.C.A. §§ 1501(4), 1505, 1521, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.2, 3.3(a)(3), 3.102, 3.159, 3.203, 3.666 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. With regards to the Veteran's claims for alcoholism and a nonservice-connected pension, the Board notes that pertinent law is determinative of the Veteran's claims. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As VA's General Counsel has held that the notice and assistance requirements of the VCAA are not applicable where there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit, the Board finds the requirements of the VCAA not applicable to the appeal. The General Counsel reasoned that there was no reasonable possibility that such a claim could be substantiated. VAOPGCPREC 5-2004 (2004), 69 Fed. Reg. 59989 (2004). Prior to initial adjudication of the Veteran's claims decided herein, a letter dated in October 2004 fully satisfied the duty to notify provisions as to the claims for service connection for a left shoulder dislocation, burns and a growth on the neck. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. In addition, a letter dated in August 2011 provided such notice with regards to the claim for service connection for alcohol abuse or alcohol treatment on a secondary basis. As the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After the issuance of the August 2011 letter, and opportunity for the Veteran to respond, the May 2013 SSOC reflects readjudication of the claims for service connection for alcohol treatment. Hence, the Veteran is not shown to be prejudiced by the timing of the notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an statement of the case (SOC) or SSOC, is sufficient to cure a timing defect). In addition, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of any notice provided. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between herself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The evidence of record includes the service treatment and personnel records, VA treatment records and various private treatment records. A November 2004 response from Shands Jacksonville indicated that the facility was unable to find any record of the Veteran receiving treatment. Although the Veteran reported that he had received treatment at the VA Outpatient Clinic (OPC) in Jacksonville, a June 2009 response from that facility indicated that there were no records related to the Veteran. The Veteran was informed of the unavailability of treatment records from the Jacksonville VA OPC in an April 2013 letter. The RO requested the Veteran's treatment records from a state Department of Corrections facility in September 2009 and December 2009 but received no response. Finally, a March 2013 RO Memorandum contained a formal finding as to the unavailability of clinical treatment records from Landstudhl, Germany and Montcrief Army Community Hospital and the Veteran was informed of this unavailability in a March 2013 letter. Although VA requested that he do so in a May 2009 letter, the Veteran not indicate whether he had submitted a claim for disability or Social Security Administration (SSA) benefits nor did he provide any additional evidence (such as photographs) to help substantiate his appeals. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In addition, the Veteran has not submitted authorization forms to allow VA to obtain any additional, outstanding treatment records. VA is only obligated to obtain records that are adequately identified and for which necessary releases have been submitted. See 38 C.F.R. § 3.159(c)(1). With regards to the claims for service connection for a left shoulder disorder, a disability manifested by a growth on the neck and burns, the Board finds that a VA examination with nexus opinion is not necessary. Significantly, the Veteran does not have a current diagnosis of a left shoulder disorder, a disability manifested by a growth on the neck or burns, or any clinical report or documentation of symptoms indicative of a claimed disability. Moreover, the medical evidence of record is unremarkable for any present complaints, treatment, or diagnoses referable to the claimed disabilities. Therefore, as there is no evidence of a current diagnosis related to the claimed disabilities, the Board finds that an examination and opinion is not warranted. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (discussing the circumstances when a VA examination and opinion are required). Additionally, the Board finds there has been substantial compliance with its November 2007 remand directives. The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the AMC obtained the Veteran's service personnel records, requested his treatment records from a state Department of Corrections facility, requested VA treatment records that had been identified by the Veteran and provided additional notice to the Veteran regarding the criteria for establishing service connection for alcohol abuse as secondary to a service-connected disability. In addition, the AMC inquired as to whether the Veteran had submitted claims for disability or other SSA benefits and informed the Veteran that he may submit alternate evidence, such as photographs, in support of his claims. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claims. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). The Veteran has submitted argument and evidence in support of the appeals. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. II. Service Connection As detailed in the Introduction, the Veteran had honorable active duty service from October 9, 1970 to March 16, 1975. An October 2004 administrative decision determined that the Veteran's period of service from March 17, 1975 to February 22, 1979 was a bar to VA benefits. Thus, the Veteran's first period of service is the only active duty service that will be considered for VA compensation purposes. A. Applicable Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). In a recent decision, the United States Court of Appeals for the Federal Circuit (the Federal Circuit) determined that such an alternative method can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that arthritis is listed as a chronic disease under 38 C.F.R. §§ 3.307(a), 3.309(a). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.") Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). B. Left Shoulder, Neck Growth and Burns The Veteran contends that he injured his left shoulder during advanced individual training and that he sustained second and third degrees burns when a kitchen stove exploded while he was stationed at Fort Jackson. He also contends that he had a neck growth removed by a private provider in the early 1990s but he has not provided any argument as to why he believed that this neck growth was related to his service. Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), vacated in part and remanded on other grounds sub. nom. Sanchez-Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001). Service treatment records document the Veteran's January 1971 complaints of a left shoulder pain after "popping out" five days previously. A January 1971 left shoulder X-ray was negative. The Veteran subsequently complained of left shoulder pain in January and February 1971. Post-service treatment records were negative for complaints, treatments or diagnoses related to a left shoulder disorder, a disability manifested by a growth on the neck or burns. The medical evidence of record simply does not corroborate the Veteran's assertions as to experiencing a left shoulder disorder, a disability manifested by a growth on the neck or burns since service-as he asserts in connection with these claims-and there is otherwise no competent, persuasive evidence that he has, or at any time pertinent to this appeal has had, such disabilities. Here, the Veteran filed his claim for service connection in March 2004. As such, no evidence supports a finding of a left shoulder disorder, a disability manifested by a growth on the neck or burns at any time frame pertinent to this appeal. Thus, there is no competent evidence to support a finding that the Veteran has, or at any time pertinent to this claim has had, left shoulder disorder, a disability manifested by growths on the neck or burns, and neither the Veteran nor his representative has presented or identified any such evidence or opinion. Thus, without a medical evidence of a current disability within the meaning of McClain, fundamentally, there can be no award of service connection. Rather, the evidence indicates no more than the Veteran's own, unsubstantiated reports of a left shoulder disorder, a disability manifested by growths on the neck and burns. As for the lay assertions of record, the Board notes that the Veteran is certainly competent to report his own symptoms or matters within his personal knowledge. See Jandreau, supra; Buchanan, supra. In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, matters of medical diagnosis for disability not capable of lay observation (and, if competently shown, a medical relationship between such disability and service)-such as the ones here at issue-are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is not shown to be other than a layperson without appropriate medical training and expertise to competently self-diagnose a left shoulder disorder, a disability manifested by a growth on the neck or burns, to render a diagnosis as to such a current disability or to opine as to the etiology of any such disability, the lay assertions in this regard have no probative value. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge'). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. §§ 1110, 1131. Thus, where, as here, medical evidence indicates that the Veteran does not have the disability for which service connection is sought-and there is no contrary, competent evidence-there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. For all the foregoing reasons, the Board finds that service connection for a left shoulder disorder, a disability manifested by a growth on the neck and burns are not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). C. Alcoholism The Veteran contends that he began drinking after sustaining burns when a kitchen stove exploded during service. He reported that he continued to drink heavily after service. Post-service treatment records noted a history of alcoholism. The Board notes that service connection for a primary disability caused by alcoholism is prohibited for all service connection claims filed after October 1, 1990, as in this case. See 38 U.S.C.A. §§ 105, 1110, 1131; 38 C.F.R. §§ 3.1(n), 3.301(d); see also Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001) (noting that 38 U.S.C.A. § 1110 precludes compensation for primary alcohol abuse disabilities and for secondary disabilities that result from primary alcohol abuse). As the Veteran's claim for service connection for alcohol treatment is based on his assertion that he began drinking during service (i.e. direct service connection), it must be denied as a matter of law. Sabonis, supra. Hence, there is no current diagnosis for a disorder that is lawfully subject to service connection. III. Nonservice-Connected Pension The Veteran contends that he is entitled to a nonservice connected pension as he has no income and served honorably during a period of war. Pursuant to U.S.C.A. § 1513(a), pension is payable to a Veteran of a period of war who is 65 years of age or older and who meets the service requirements of section 1521 and under the conditions (other than the permanent and total disability requirement) applicable to pension paid under that section. Under the provisions of 38 U.S.C.A. § 1521, pension is payable to a Veteran who served for 90 days or more during a period of war and who is permanently and totally disabled due to nonservice-connected disabilities which are not the result of the Veteran's willful misconduct. 38 U.S.C.A. § 1521(j); 38 C.F.R. 3.3(a)(3). As previously discussed, the Veteran had honorable active service from October 9, 1970 to March 16, 1975. VA's defined periods of war are listed in 38 C.F.R. § 3.2. For veterans who did not serve in the Republic of Vietnam, the Vietnam wartime period is considered to begin on August 5, 1964 and end on May 7, 1975. The Veteran's period of honorable active military service, falls within Vietnam War wartime period. 38 C.F.R. § 3.2 (f). The record also reflects that the Veteran is not over 65 years of age. However, the record also reflects he has been incarcerated for a felony throughout the pendency of this case, to include at the time he submitted his claim for nonservice-connected pension benefits. Applicable law and regulations indicate that no pension under public or private laws administered by VA shall be paid to or for an individual who has been imprisoned in a Federal, State, or local penal institution as a result of conviction of a felony or misdemeanor for any part of the period beginning sixty-one days after such individual's imprisonment begins and ending when such individual's imprisonment ends. 38 U.S.C.A. § 1505(a); 38 C.F.R. § 3.666; see also Latham v. Brown, 4 Vet. App. 265 (1993). The record indicates that the Veteran has been imprisoned for over 60 days as the Veteran himself reported that he had been incarcerated since 2001 in a February 2005 notice of disagreement. A September 2004 treatment note from a state Department of Corrections facility indicates that the Veteran had been convicted of second degree murder. While the Veteran could have been released or transferred from that state Department of Corrections facility, as correspondence to the Veteran dated in April 2013 and a May 2013 SSOC has been returned to VA by the United States Postal Service, the Veteran has not provided an updated address to VA. It is the Veteran, alone, who is responsible for keeping the VA informed of his current address, and to report any change of address in a timely manner. If he does not do so, "there is no burden on the part of the VA to turn up heaven and earth to find [him]." See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). The Board also notes a May 2013 Report of Contact in which a VA Veterans Service Representative documented a telephone call with the Veteran and noted that his current address was the Department of Corrections address. There is no indication that the Veteran reported a new address or that he was scheduled to be released from the Department of Corrections during that telephone call. Moreover, it does not appear that the Veteran has had any contact with VA since that May 2013 telephone call. In the absence of an updated address or information from the Veteran indicating that he had been released from prison, the Board must rely on the evidence of record. As the Veteran has been incarcerated throughout the pendency of this case, to include at the time he submitted his initial pension claim, the Board finds that his claim of entitlement to nonservice-connected pension benefits must be denied as a matter of law. Sabonis, supra. Upon the Veteran's release from incarceration, he is free to file a new claim for nonservice-connected pension benefits. See Latham, supra (noting that the law "allow[s] for the resumption of the payment of pension to the Veteran upon release from incarceration"); 38 C.F.R. § 3.666(c) (resumption of pension upon release from incarceration). ORDER Service connection for a left shoulder disorder is denied. Service connection for a disability manifested as a growth on the neck is denied. Service connection for burns is denied. Service connection for alcohol treatment is denied. Basic eligibility for nonservice-connected pension benefits is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim for service connection for vision problems so that he is afforded every possible consideration. In a January 2004 statement, the Veteran indicated that he had sought treatment for his eye or vision difficulties at the VA facility in "Johnson City" sometime after service discharge. It does not appear that such records have been requested. On remand, an attempt to obtain such records should be made. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's treatment records from the VA facility in Johnson City, to include the Mountain Home VA Medical Center, pertaining to his claimed eye or vision disability, as detailed in his January 2004 statement. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the May 2013 supplemental statement of the case. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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 (CONTINUED ON NEXT PAGE) 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). _________________________________________________ MARJORIE A. AUER 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).