Citation Nr: 18123983
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 14-25 285
DATE:	August 3, 2018
ORDER
Entitlement to service connection for residuals of an insect bite on the left hand is denied.
Entitlement to service connection for right eye pinguecula is granted.
REMANDED

Entitlement to service connection for a left eye condition is remanded.  
Entitlement to service connection for back condition is remanded.
Entitlement to a disability rating greater than 10 percent for costochondritis, chest contusion, is remanded.
FINDINGS OF FACT
1. The Veteran does not have current residuals of an insect bite on the left hand.
2. The Veteran’s right eye pinguecula had its onset in service and has continued to his day.
CONCLUSIONS OF LAW
1. The criteria for service connection for residuals of an insect bite on the left hand have not been met.  38 U.S.C. §§ 1110, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303.
2. The criteria for service connection for right eye pinguecula have been met.  38 U.S.C. §§ 1110, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the U.S. Army from August 1984 to June 1987.  He also served with the Reserves from June 1987 to March 1996 and the Army National Guard from July 1989 to July 2012.
VA also has a duty to assist a claimant in the development of a claim.  That duty includes assisting the claimant in the procurement of service and other relevant records and providing an examination when necessary.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.
In cases where the Veteran’s service treatment records are, through no fault of his own, unavailable, a heightened duty exists to assist the Veteran in the development of the case.  O’Hare v. Derwinski, 1 Vet. App. 365 (1991); Layno v. Brown, 6 Vet. App. 465 (1994).  When service records are lost or missing or destroyed, in conjunction with a heightened duty to assist, VA must inform the Veteran that he can submit “alternative” sources in place of his missing service records.  Washington v. Nicholson, 19 Vet. App. 362 (2005); Dixon v. Derwinski, 3 Vet. App. 261 (1992).
In June 2010, the Veteran was notified that the VA would request his service treatment records (STRs) from the service department and he may submit any records in his possession.  In a September 2010 notification letter, the Veteran was informed of the unavailability of his STRs from his Army period of service from August 14, 1984 to June 17, 1987, and informed of any other evidence he could submit.
STRs for the Veteran’s Army Reserve and National Guard periods of July 22, 1987 to July 31, 2012 were obtained and associated with his claims file.  The Veteran’s claims relate to this period of service and not to his Army period of service, for which STRs cannot be located.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384 (1993).
Service Connection
1. Residuals of an Insect Bite to the Left Hand 
The Veteran contends that he incurred an insect bite on his left hand while on active duty, causing it to swell up, warranting service connection.
The Board finds that, although there is evidence that the Veteran incurred the insect bite on his left hand while on active duty, there is no competent evidence of current or persistent symptoms or a diagnosed disability related to the insect bite.
The Veteran filed his claim in December 2010.  He wrote on the claim that he had an insect bite on his left hand which was documented in the STRs.  His STRs include a June 2006 note wherein the Veteran reported experiencing a swollen left hand two days prior.  The doctor’s note reveals the Veteran was apparently bitten by an insect or other animal.  The assessment was left hand edema secondary to insect bite.  It is unclear from the STR whether the Veteran’s left hand was bitten during active duty.  However, a July 2010 medical report indicates that, while on duty at the Mayaguez Medical Center on July 17, 2010, the Veteran was bitten by an insect, causing his finger to swell, and he was sent to a medical clinic to receive treatment.  The medical report also notes that the Veteran was on Inactive Duty-Training (INACDUTRA) at the time of the incident.    Following the July 2010 medical report, there are no subsequent treatment records related to the swollen left hand or any residuals of an insect bite.  VA treatment records associated with the claims file are silent as to complaints of, diagnosis of or treatment for residuals of an insect bite on the left hand.  
A review of the evidence reveals that the Veteran does not actually allege that he currently has residuals of an insect bite on the left hand.  He submitted the claim only noting that he had been treated for an insect bite in the past during active duty.  The record is totally devoid of any evidence of residuals of an insect bite on the left hand at any time since the claim was filed.  
The Board finds that the Veteran does not have a current disability related to residuals of an insect bite on the left hand.  Although the Veteran was bitten while on INACDUTRA, there is no evidence of a current disability or persistent or recurrent symptoms of a disability.  The Board finds that a preponderance of the evidence is against the claim of service connection for a left hand insect bite, and there is no doubt to be resolved.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
2. Right Eye Condition
As stated above, the Veteran’s STRs for his active duty period of August 14, 1984 to June 12, 1987 are unavailable or missing.
In April 2010, the Veteran submitted a claim of entitlement to service connection, in part, for an eye condition.  In July 2012, he wrote that his eye condition was diagnosed on October 1, 1985 while he was on active duty.  He was subsequently put on permanent profile for the eye disorder.  Associated with the claims file is the report of an October 1985 Physical Profile Board Proceedings.  The document indicated that the Veteran was found to have bilateral pinguecula.  The physical profile was permanent.  Current VA clinical records include pertinent diagnoses of right eye pinguecula.  
There is no evidence demonstrating that the Veteran had right eye pinguecula prior to his active duty service.  The fact that the physical profile is dated more than one year after the Veteran's entry into active duty supports a finding that the disorder was not present prior to active duty service.  It certainly does not suggest, in any way, that the right eye disorder was present prior to active duty.  The Veteran has submitted a statement indicating that the disorder began during active duty and the Board finds no reason to question the Veteran's credibly with regard to this assertion.  The Veteran is currently diagnosed with right eye pinguecula.  Based on this fact pattern, the Board finds that service connection is warranted for right eye pinguecula.  

REASONS FOR REMAND
1. Service Connection for Left Eye Condition
The Veteran is claiming entitlement to service connection for a left eye disorder.  As set out above, the Veteran was found to have bilateral pinguecula during active duty and service connection has been granted for right eye pinguecula.  The current left eye diagnosis based on the competent clinical records is pterygium.  It is not apparent if the currently diagnosed left eye pterygium is etiologically linked to the left eye pinguecula noted during active duty.  A remand is required to schedule a vax to determine the etiology of the current left eye pterygium.  
2. Service Connection for Back Condition
The Veteran contends that his back condition was caused by the motor vehicle accident in August 2008 while on duty.  This is the same motor vehicle accident on which his service connected costochondritis is based.
While the medical report does not indicate that the Veteran suffered a back injury during the accident, subsequent medical records, including his service treatment records, evaluations, private treatment records, and VA treatment records, show the Veteran complaining of back and neck pain.  Although more recent treatment records show that the Veteran’s back pain has improved, the Veteran has received treatment, including medication and pain management, since the August 2008 accident.
The Board finds there is competent evidence of persistent or recurrent symptoms of a back condition that may be associated with the motor vehicle accident in August 2008, but there is insufficient competent medical evidence for the Board to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Therefore, the claim is remanded for further development, including a VA examination.
3. Disability Rating Greater than 10 Percent for Costochondritis, Chest Contusion
The Veteran contends that his service connected costochondritis warrants a disability rating greater than 10 percent.
The disability of costochondritis is not specifically listed in the rating schedule, and therefore the VA has rated it analogous to a disability in which not only the functions affected, but anatomical localization and symptoms, are closely related.  
The Veteran underwent a VA examination in May 2011.  The claim for service connection for costochondritis was granted as noncompensable in the May 2011 decision, however, the RO considered the disability under Diagnostic Code 5321, Torso and Neck, Group XXI, Muscle of respiration, and granted a 10 percent disability rating in the April 2014 decision based on the findings of the May 2011 VA examination.  38 C.F.R. § 4.73.  While the Veteran has continued to receive treatment for his condition, there are no records showing his current level of disability since the May 2011 VA examination.  Therefore, the Board finds that a new examination is warranted to assess the Veteran’s current level of disability.
The matters are REMANDED for the following action:
1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers, to obtain the treatment records identified by the Veteran.  If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified.  Obtain all pertinent VA records not already associated with the claims file.
2. Schedule the Veteran for a VA eye examination with an appropriately qualified examiner to determine the nature and etiology of any left eye disorder found on examination.  The claims file, including a copy of this Remand, must be reviewed in conjunction with the claim.
The examiner must provide the following opinions:
  a).  Does the Veteran have a current diagnosis of a left eye disorder at any time during the appeal period?
  b).  If yes, is it at least as likely as not (50 percent or greater) that the Veteran’s left eye disorder was incurred in or is otherwise related to his military service, including the left eye pinguecula noted in October 1985?
  The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.
The rationale for all opinions expressed must also be provided.  If the examiner is unable to provide the required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.
3. Schedule the Veteran for a VA back examination with an appropriately qualified examiner to determine the nature and etiology of the Veteran’s back condition.  The claims file, including a copy of this Remand, must be reviewed in conjunction with the claim.
The examiner must provide the following opinions:
a).  Does the Veteran have a current diagnosis of a back disability at any time during the appeal period?
b).  If yes, is it at least as likely as not (50 percent or greater) that the Veteran’s back disability was incurred in or is otherwise related to his military service, including the August 16, 2008, motor vehicle accident?
The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.
The rationale for all opinions expressed must also be provided.  If the examiner is unable to provide the required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.
4. Schedule the Veteran for a VA examination with an appropriately qualified examiner to determine the current nature and extent of his impairment due to his service connected costochondritis.  Provide the Veteran’s claims file, including a copy of this Remand, to the examiner for review.  Any indicated studies should be performed.
The examiner should provide all information required for rating purposes regarding the Veteran’s current impairment level and provide an opinion as to whether the Veteran’s current impairment levels have worsened, improved, or stayed the same and for how long.
The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.
The rationale for all opinions expressed must also be provided.  If the examiner is unable to provide the required opinion, he or she should explain why.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed.
5. After completing any additional development deemed necessary, if the claim remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond.

 
G. A. WASIK
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. I. Tissera, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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