Citation Nr: 1341387 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 08-16 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a bilateral eye disability, to include as secondary to service-connected Type II diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to January 1972. This matter initially came before the Board of Veterans' Appeals (Board) from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In that decision, the RO denied entitlement to service connection for glaucoma. The Veteran testified before the undersigned at a September 2008 videoconference hearing at the RO. A transcript of that hearing has been associated with his claims folder. In February 2010 and August 2011, the Board remanded this matter for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and considered as part of this appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, medical records indicate that the Veteran has been diagnosed as having various eye disabilities. For example, VA ophthalmology clinic notes dated in May 2008, May 2009, and March 2010 include diagnoses of glaucoma, floppy eyelid syndrome, hypertensive retinopathy, and bilateral ring scotomas. The Veteran claims that his current eye problems are related to his service-connected diabetes mellitus. In the alternative, he claims that he sustained an eye injury prior to service and that pre-existing eye problems were aggravated during service. Service treatment records reveal that the Veteran's uncorrected distant visual acuity at the time of his entrance into service was 20/100 in the right eye and 20/30 in the left eye and that both eyes were correctable to 20/20. He was diagnosed as having right eye exotropia with no reported diplopia. His eyes were otherwise noted to be normal and he was therefore presumed sound other than for the diagnosed right eye exotropia. In February 1970 he was treated for a sore on his left eye. Examination revealed a small cyst on the left lower lid and a diagnosis of a left eye chalazion was provided. Additionally, his January 1972 separation examination indicates that his uncorrected distant visual acuity was identical to that which was present at the time of his entrance into service. He reported on a January 1972 report of medical history completed for purposes of separation from service that he was treated for an eye injury in 1957 after he was hit in the eye with a golf ball. The Veteran was afforded VA examinations in April 2005, November 2006, June 2010, and August 2011 and opinions were provided concerning the etiology of his claimed eye disability. However, the opinions primarily pertained to his diagnosed glaucoma and the examiners did not adequately acknowledge or consider his other diagnosed eye disabilities (e.g. floppy eyelid syndrome, hypertensive retinopathy, and bilateral ring scotomas). Also, no adequate opinion has been given as to whether any current eye disability was aggravated by the Veteran's service-connected diabetes mellitus and no opinion has been provided concerning whether any current eye disability was incurred or aggravated in service. In this regard, an adequate medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In light of the above, the Board finds that a remand is necessary to afford the Veteran a new VA eye examination to assess the etiology of all current eye disabilities. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2013); see 38 C.F.R. § 19.9 (2013). Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2012); 38 C.F.R. § 3.159(c), (d) (2013). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). In a December 2004 statement (VA Form 9), the Veteran reported that he was in receipt of Social Security Administration (SSA) disability benefits for an unspecified disability. The United States Court of Appeals for Veterans Claims has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant). The medical records related to the SSA's disability determination have not yet been associated with the claims file and may be relevant. Also, an August 2011 VA examination report indicates that the Veteran was treated at a VA eye clinic in June 2011. The most recent VA treatment records in the claims file that pertain to treatment for eye problems are from the VA Medical Center in Atlanta, Georgia (VAMC Atlanta) and the VA Medical Center in New Orleans, Louisiana (VAMC New Orleans) and are dated to August 2006 and April 2010, respectively. Thus, it appears that there are additional VA treatment records that have not yet been obtained. VA has a duty to obtain any additional relevant records. 38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 2. Obtain and associate with the claims file all records of the Veteran's treatment for an eye disability from VAMC Atlanta dated from August 2006 through the present, from VAMC New Orleans dated from April 2010 through the present, and from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records and any records obtained from the SSA, schedule the Veteran for a VA eye examination to determine the nature and etiology of all current eye disabilities. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA and VBMS systems, along with any records obtained pursuant to this remand, must be sent to the examiner for review. For each current eye disability identified (i.e. any eye disability diagnosed since February 2005, including glaucoma, floppy eyelid syndrome, hypertensive retinopathy, and bilateral ring scotomas), the examiner shall answer all of the following questions: (a) Did the current eye disability clearly and unmistakably pre-exist service and, if so, was the disability clearly and unmistakably not aggravated (underwent no permanent increase in disability) by active service beyond the normal progression of the disease? (b) If a current eye disability did not clearly and unmistakably pre-exist service, and was clearly and unmistakably not aggravated during service, is it at least as likely as not (50 percent probability or more) that the eye disability had its onset during service, is related to the Veteran's eye problems in service, or is otherwise the result of a disease or injury in service? (c) Is it at least as likely as not (50 percent probability or more) that the current eye disability was caused (in whole or in part) by the Veteran's service-connected diabetes mellitus? (d) Is it at least as likely as not (50 percent probability or more) that the current eye disability was aggravated (made chronically worse) by the Veteran's service-connected diabetes mellitus? (e) Which diagnosed eye conditions, if any, are refractive errors as opposed to acquired eye disabilities? The examiner is advised that the term "clear and unmistakable" means that which cannot be misunderstood or misinterpreted and is undebatable. In formulating the above opinions, the examiner must acknowledge and comment on all eye disabilities diagnosed since February 2005 (including, but not limited to, glaucoma, floppy eyelid syndrome, hypertensive retinopathy, and bilateral ring scotomas), the Veteran's reported eye injury as a child, all instances of treatment for eye problem in his service treatment records (including the February 1970 treatment for a left eye chalazion), and the opinions of the examiners who conducted the April 2005, November 2006, June 2010, and August 2011 VA examinations. The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports regarding symptoms, the examiner must provide a reason for doing so. If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall 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 agency of original jurisdiction (AOJ) shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 4. The AOJ shall review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 5. If the benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given opportunity to respond, the case shall be returned to the Board. 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 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). _________________________________________________ J. A. MARKEY 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).