Citation Nr: 0005723 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 97-22 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether the claim for service connection for an eye disorder is well-grounded. 2. Entitlement to service connection for an eye disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The veteran served on active duty from May 1974 to August 1989. This appeal arises from a May 1996 rating decision of the Department of Veterans Affairs (VA), Jackson, Mississippi, regional office (RO). That rating decision, in part, determined that the veteran had not submitted new and material evidence to open a previously denied claim for service connection for an eye disorder. In April 1999, the Board of Veterans' Appeals (Board) concluded that new and material evidence had been submitted, and that the veteran's claim had been reopened. The Board remanded the case for additional development and for adjudication on the merits. In August 1999, the RO denied the veteran's claim. FINDINGS OF FACT 1. The record contains current diagnoses of open angle glaucoma and/or inadequate intraocular pressure control. 2. Borderline intraocular pressure was noted during service, and private physician's statement dated in December 1982, during the veteran's period of service, indicated that he should be considered a "glaucoma suspect" based on elevated intraocular pressure. CONCLUSION OF LAW The claim of entitlement to service connection for an eye disorder is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Establishing a well grounded claim for service connection for a particular disability requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible, i.e., meritorious on its own or capable of substantiation. See Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Board concludes that the veteran's claim is plausible because it is capable of substantiation. The record contains current diagnoses of open angle glaucoma and/or inadequate intraocular pressure control. Borderline intraocular pressure was noted during service, and a private physician's statement dated in December 1982, during the veteran's period of service, indicated that he should be considered a "glaucoma suspect" based on elevated intraocular pressure. In view of the inservice findings and the subsequent diagnoses of glaucoma of record, the Board finds that the December 1982 physician's statement serves as a prospective "nexus opinion" for the purposes of establishing a well-grounded claim. ORDER The claim of entitlement to service connection for an eye disorder is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for an eye disorder is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). As noted above, the veteran's service medical records showed borderline intraocular pressures, and a December 1982 private physician's statement , indicated that he should be considered a "glaucoma suspect" based on elevated intraocular pressure. A VA examination in January 1990 found the intraocular pressure "ok now." In October 1995, the veteran gave a history of increased intraocular pressure and glaucoma was suspected. In November 1995, his assessment was early open angle glaucoma and inadequate intraocular pressure control. In December 1995, the assessment was open angle glaucoma. In September 1996, after moving to Mississippi, the veteran was evaluated at the VA eye clinic in Memphis, Tennessee as a new patient. The assessment was glaucoma suspect vs. ocular hypertension. In January 1997, he was continuing treatment with medication for his eye pressure and the assessment was unchanged. A glaucoma hemifield test was within normal limits on the right and borderline on the left. An assessment in November 1997 showed an impression of ocular hypertension vs. open angle glaucoma. Prior to its consideration of the merits of the case, the Board is of the opinion that the veteran should be examined in order to reconcile the differing diagnoses of record and provide an opinion as to the likelihood that a current eye disorder is more likely than not related to findings shown during his period of active service. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Halstead v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED to the RO for the following: 1. The veteran should be scheduled for an examination by a VA ophthalmologist. All indicated tests and studies are to be performed. The examiner is requested to provide an opinion as to the nature and extent of any current eye pathology, and whether it is related to the borderline intraocular pressures and the private opinion that the veteran was a "glaucoma suspect" noted during service beginning in 1982. The entire claims folder, including the service medical records with particular reference to the findings noted above, and a copy of this REMAND must be made available to and reviewed by the examiner prior to the examination. The examiner must provide a comprehensive report including complete rationale for all conclusions reached. 2. Following completion of the foregoing, the RO must review the claims folder and ensure that the foregoing development action has been conducted and completed in full. If the examination report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1999) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); and Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Following completion of the above, the RO should review the evidence and determine whether the veteran's claim may now be granted. If not, the veteran should be provided with an appropriate supplemental statement of the case. Thereafter, the case should be 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 to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals