Citation Nr: 1428895 Decision Date: 06/26/14 Archive Date: 07/03/14 DOCKET NO. 10-25 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left eye condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1982 to December 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 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 virtual file were reviewed in conjunction with this appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserts that he is entitled to service connection for a left eye condition. VA treatment records indicate that he is missing his upper puntum, and has difficulty with eye tearing, drainage, and dilation when cold air hits his eye. The Veteran asserts that he contracted a left eye infection while stationed at Fort Polk in 1983 or 1984. After receiving ineffective treatment there, he was then sent to Fort Irwin on a 30 day long training deployment. Letters from his family state that he was not given the opportunity to see an ophthalmologist during this period. When he returned, they state that an ophthalmologist tried to reopen his tear ducts with a needle, only to find that they are partially or totally closed. The RO denied the Veteran's claim due to the fact that his service treatment records are unavailable. An initial formal finding of unavailability was issued in November 2008, and a second one was issued in November 2009 after a search was made for records at the Fort Polk Army Hospital. However, a search was made for records from the autumn of 1984, and the Veteran indicated in his July 2008 claim that he was treated at Fort Polk in 1983. Accordingly, remand is necessary to determine whether records from this alternate period are available. When service medical records have been lost, there is a heightened duty to assist the veteran in developing the evidence that might support his claim. See Cuevas v. Principi, 3 Vet. App. 542 (1992). This heightened duty includes the obligation to search for alternate medical records. See Moore v. Derwinski, 1 Vet. App. 401 (1991). The Board also finds that a VA examination is warranted. The Veteran has provided records showing a current left eye disability. From the statements of the Veteran and his family, there is evidence suggesting that his disability began in service and an indication that his disability may be associated with his service. There is also insufficient competent medical evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Given the current lack of service treatment records, the Board notes that that when service records are unavailable through no fault of the veteran, there is an obligation to explain findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 371 (2005). Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate records repositories, to include the NPRC, and search for any separately stored service hospital inpatient records from Fort Polk Army Hospital from 1983. All efforts to obtain the above-described records must be documented in the claims file. Such efforts shall continue until federal records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. Reasonable efforts are necessary for non-federal records. If any records cannot be obtained after appropriate efforts have been expended, the Veteran should be given proper notice and allowed an opportunity to provide such records. 2. Following completion of the above-requested action, schedule a VA examination concerning the Veteran's left eye disability. The examination should include all necessary diagnostic testing or evaluation. The claims file, including a complete copy of this remand, must be made available for review. Based on review of the record and examination of the Veteran, the examiner should respond to the following: Is it at least as likely as not (probability of 50 percent or more) that the Veteran's current left eye disability is attributable to his military service? In responding to the above, the examiner should provide an explanation that takes into account all lay and medical evidence, including the lay statements submitted by the Veteran and his family concerning his in-service injury and his symptoms since that event; any in-service treatment records from his 1983 or 1984 hospitalization; and VA medical records. The examiner should give medical reasons for accepting or rejecting the lay statements regarding the in-service injury and continued symptoms since service. If any service treatment records are not found, the examiner should take this into consideration in explaining his or findings and conclusions, and should carefully consider the benefit-of-the-doubt rule. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should 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 should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 5. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. If the benefit sought is not granted, furnish a Supplemental Statement of the Case and afford the Veteran a reasonable opportunity to respond before the case is returned to the Board. 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. 2012). _________________________________________________ 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) (2012).