Citation Nr: 0508570 Decision Date: 03/22/05 Archive Date: 04/01/05 DOCKET NO. 02-05 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a chronic acquired bilateral eye disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from July 1968 to July 1972. This appeal to the Board of Veterans' Appeals (Board) previously arose from a May 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The RO determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for a chronic acquired bilateral eye disorder. In July 2003 the veteran provided oral testimony before the undersigned Veterans Law Judge sitting at the RO, a transcript of which has been associated with the claims file. In January 2004 the Board determined that new and material evidence had been submitted to reopen a claim of entitlement to service connection for a chronic acquired bilateral eye disorder, and remanded the claim of entitlement to service connection for a chronic acquired bilateral eye disorder on a de novo basis to the RO for further development and adjudicative action. In November 2004 the RO denied entitlement to service connection for a chronic acquired bilateral eye disorder on a de novo basis. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND This claim must be afforded expeditious treatment by the Veterans Benefits Administration (VBA) AMC. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (CAVC) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). The CAVC has held that section 5103(a), as amended by the Veterans Claims Assistance Act of 2000 (VCAA) and § 3.159(b), as recently amended, require VA to inform a claimant of which evidence VA will provide and which evidence claimant is to provide, and remanding where VA failed to do so. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 202); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002). The RO issued a VCAA notice letter to the veteran in connection with his current appeal in February 2004 which is compliant with Quartuccio, supra. One of the purposes of the Board's January 2004 remand of the case to the RO was to obtain a contemporaneous, comprehensive VA special ophthalmological examination with a competent and probative medical opinion as to whether any current eye disorders were related to active service. The Board's January 2004 remand directives specifically included that the medical specialist provide a complete rationale for any opinions expressed as the result of examination of the veteran. The representative has expressed considerable dissatisfaction with the February 2004 VA special ophthalmological examination report since the examiner did not provide any rationale for the medical opinions rendered. The representative has directed the Board's attention to Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the service representative has argued that the VA examiner did not comply with the terms of the remand. The Board tends to agree that there has been poor compliance with the Board's January 2004 remand directives. In the January 2004 remand directives the Board specifically requested that the medical specialist provide a complete rationale for all opinions expressed. The medical specialist merely provided the monosyllabic responses without shedding any additional light as to how the negative responses were reached. The CAVC has held that a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders, and that a remand by the Board imposes upon the RO a concomitant duty to ensure compliance with all of the terms of the remand. Where the remand orders are not complied with, the Board errs in failing to ensure compliance. Stegall, supra. Accordingly, the Board finds that the case must once again be remanded to the RO for referral of the case to the medical specialist for provision of a rationale for his responses. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the VBA AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Board observes that additional due process requirements may be applicable as a result of the enactment of the VCAA and its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002) and 66 Fed. Reg. 45,620 (Aug. 29, 2001) (38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). Accordingly, the case is remanded to the VBA AMC for further action as follows: 1. The VBA AMC should refer the veteran's claims file to the VA medical specialist, identified as Dr. WB, who performed the February 2004 VA special ophthalmological examination for provision of a complete rationale to support his negative responses to the three Board remand questions he addressed. The claims file, a copy of this remand and the Board's January 2004 remand must be made available to Dr. WB for review in conjunction with his provision of an addendum containing a complete rationale for the negative responses he provided on the February 2004 VA special ophthalmological examination. DR. WB must annotate the addendum that the claims file, and copies of this remand, and the January 2004 remand were provided to him in conjunction with his review of the record. If Dr. WB is no longer employed by VA, the VBA AMC should refer the claims file, and copies of this remand and the January 2004 remand to another ophthalmologist for provision of responses to the Board's January remand questions with further examination of the veteran at his/her option. 2. Thereafter, the VBA AMC should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the VBA AMC should review the requested addendum/medical records review and required medical opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the VBA AMC should implement corrective procedures. The Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). 3. After undertaking any development deemed essential in addition to that specified above, the VBA AMC should readjudicate the claim of entitlement to service connection for a chronic acquired bilateral eye disorder on a de novo basis. If the benefit requested on appeal is not granted to the veteran's satisfaction, the VBA AMC should issue a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations pertinent to the claim currently on appeal. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the VBA AMC; however, the veteran is hereby notified that failure to report for any scheduled VA examination(s) without good cause shown may adversely affect the outcome of his claim for service connection, and may result in a denial. 38 C.F.R. § 3.655 (2004). _________________________________________________ RONALD R. BOSCH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the CAVC. 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) (2004).