Citation Nr: 1821179 Decision Date: 04/10/18 Archive Date: 04/19/18 DOCKET NO. 14-26 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a right eye injury. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel INTRODUCTION The Veteran had active service with the Marines from March 1979 to August 1979, with additional active service within the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO), which denied reopening the claim of entitlement to service connection for an eye injury. The Board notes that the RO had previously denied service connection for a right eye injury in a June 2006 rating decision. Under current regulations, notably, 38 C.F.R. § 3.156(c), at any time after VA issues a decision on a claim, if VA receives or associates with the record relevant official service department records that existed and had not been associated with the record when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Thus, the addition to the record of new service records requires reconsideration of prior decisions, rather than evaluating claims under a new and material evidence to reopen standard. See 38 C.F.R. § 3.156(c) (2017). In the current case, additional service records were added to the file, to include a Department of the Army memorandum, which provide verification of the Veteran's Reserves service dates at the time of his right eye injury. As relevant service records containing information in existence but unavailable at the time of the prior final rating decision have been obtained and added to the record, the provisions of 38 C.F.R. § 3.156(c) are for application, and thus, the Board finds that that there is a sufficient basis to reconsider the Veteran's claim on the merits, and the receipt of new and material evidence is not required. Within a July 2014 substantive appeal, the Veteran elected for a videoconference hearing at the RO before a member of the Board. However, within a February 2018 appellate brief, the Veteran, through his representative, withdrew his request for a hearing. Accordingly, the Board finds that the hearing request is withdrawn. 38 C.F.R. § 20.704 (d) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2017). A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. See Id.; McLendon v. Nicholson, 20 Vet App. 79, 83 (2006). The Veteran contends that the current pain and loss of sight in his right eye is due to a right eye injury sustained in October 2003, while serving in the Army Reserves during a period of active service. A medical treatment slip dated October 11, 2003, shows the Veteran received treatment for a right eye injury. The record contains a Department of the Army memorandum dated December 2007, showing the Veteran served a period of active duty service with the Army Reserves from October 6, 2003 to October 31, 2003. Additionally, VA treatment records show the Veteran has sought medical care for reduced eye sight, with a diagnosis of bilateral cataracts. Therefore, on remand, the Board finds that a VA examination is necessary to obtain a medical opinion as to whether the Veteran has a current right eye disability related to the October 11, 2003 injury sustained by the Veteran while on active duty. Accordingly, the case is REMANDED for the following action: 1. Associate with the record any and all outstanding and updated VA treatment records, to include any and all treatment from the Hampton VAMC. 2. After all available evidence has been associated with the record, the AOJ refer the case for a VA examination to address whether the Veteran has a current right eye disability that was incurred in service, to include verified periods of active duty service with the Army Reserves. The record should be made available for review in connection with this request, and the AOJ should provide the examiner with a listing of the Veteran's active duty service periods with the Army Reserves within a Department of the Army memorandum dated December 2007. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a current right eye disability was incurred in or is otherwise related the Veteran's active duty service from October 6, 2003 to October 31, 2003. The examiner should provide a rationale for his or her opinion with reference to the evidence of record. In providing the opinion, the VA examiner should note the October 2003 treatment note for a right eye injury and current VA medical records showing treatment for an eye condition. 3. Thereafter, the AOJ should readjudicate the claim. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case, and should be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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 2014). _________________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).