BVA9500499 DOCKET NO. 93-09 756 ) DATE ) ) On appeal from a decision of the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a bilateral eye disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD E. A. Artman, Associate Counsel INTRODUCTION The veteran served on active duty from October 1948 to October 1949, and from January 1951 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from a January 1990 rating decision of the Milwaukee, Wisconsin, Regional Office (RO). This decision denied a claim of service connection for a bilateral eye disorder, namely diffuse choroditis, on the basis that no such disorder had been incurred in or aggravated by the veteran's active service. In pursuit of his claim of service connection, the veteran has contended that his eye disorder may be attributable to his exposure to Agent Orange during his service in Vietnam. He has subsequently been notified by the RO that adjudicatory action could not be performed on his claim of service connection on this basis until new regulations have been promulgated which govern the award of benefits for exposure to chemical dioxins. See Nehmer v. U.S. Veterans' Administration, 712 F.Supp. 1404 (N.D. Cal. 1989). This has now been done. In written argument submitted to the Board in August 1993, the veteran's representative raised an additional issue of whether clear and unmistakable error was committed by a May 1988 decision of the RO, in its failure to grant service connection for the disability now on appeal. This rating action denied service connection for cataract and blindness of the right eye, which seems clearly a distinct disability from that now at issue. REMAND In his August 1993 argument, the veteran's representative asserted his belief that additional service medical records could be incorporated into the record, provided an additional effort was made to recover such records. The Board has reviewed the service medical records currently contained in the veteran's claims file, and notes that a report pertaining to the veteran's physical condition just prior to his retirement from service in March 1970 is not included. In fact, there are very few clinical records for the later years of active duty. Particularly in light of the fact that the issue on appeal concerns service connection for a disorder claimed to have progressed over time, it seems appropriate that an additional attempt be made to clarify the veteran's service medical history prior to any determination of his claim. See 38 U.S.C.A. § 5107(a) (West 1991). For similar reasons, the Board concludes that the RO should assist the veteran in an attempt to recover treatment records of his eye disorder from VA and other private sources. A demonstration, or lack thereof, of chronicity of treatment would also serve to clarify whether or not the veteran has submitted a well-grounded, meritorious claim. 38 C.F.R. § 3.303(b) (1993). Accordingly, this case is REMANDED so that the following actions may take place: 1. The RO should again attempt to retrieve all available service medical records of the veteran. Any request made to the National Personnel Records Center (NPRC) should contain a reference to the rank and serial number shown on the veteran's DD Form 214 pertaining to his final period of service, as requested by the veteran's representative. The veteran should be asked to provide copies of any service medical records he may have in his possession. In addition, an attempt should be made to obtain copies of treatment reports from the sources of treatment identified by the veteran as providing care for his claimed disorder on the cover sheets of his VA examination reports, dated in June 1988, October 1989 and November 1991. The veteran's assistance and release authority should be sought, as needed. Copies of treatment records, dated in 1989, should also be obtained from VA outpatient treatment clinic(s), since the veteran has testified (at an October 1991 hearing before a hearing officer) that he received VA treatment for his eye disorder at this time. The veteran should be asked to clarify the treating facility. All evidence received should be associated with the veteran's claims file. 2. Based on the evidence obtained, the RO should take all indicated adjudicatory action. Included should be consideration of his claim under the recently promulgated regulations concerning Agent Orange exposure, see 59 Fed. Reg. 5,107 (1994) (to be codified at 38 C.F.R. § 3.311), and consideration of the claim of clear and unmistakable error in the May 1988 rating action. The RO should undertake a de novo review of the current claim of service connection for a bilateral eye disorder. If the benefit sought by the veteran on appeal is not granted to his satisfaction, a supplemental statement of the case should be issued. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case, the claims file should be returned to this Board for further appellate review, if necessary. No action is required by the veteran until he receives further notice. The purpose of this REMAND is to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the disposition of this appeal. J. J. SCHULE Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).