Citation Nr: 0934333 Decision Date: 09/14/09 Archive Date: 09/23/09 DOCKET NO. 98-07 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a bilateral eye disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran; mother of the Veteran ATTORNEY FOR THE BOARD Nathaniel J. Doan, Associate Counsel INTRODUCTION The Veteran had periods of active service from August 1985 to December 1985 and August 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the benefit sought on appeal. The Veteran testified before the undersigned Veterans Law Judge in May 2000 regarding service connection for an eye disability, a knee disability, and a lupus disability. The claims file contains the copy of the transcript of this hearing. The undersigned Veterans Law Judge singed an August 2000 Board remand of these issues. In this Board remand, the eye disability was then characterized as a vision disorder. In December 2002, the Veteran testified before an Acting Veterans Law Judge regarding the same issues (although characterized somewhat differently). A copy of the transcript of this hearing has also been associated with the claims file. The claims were again remanded in July 2003. The eye disability was then characterized as an eye disability with loss of vision. To simply the issue, the Board currently characterizes the issue as entitlement to service connection for a bilateral eye disability. Review of the claims file reveals that service connection for a bilateral eye disability is the only issue remaining in appellate status. The other issues previously in appellate status were subsequently granted. The Board also highlights, that by way of a March 2008 rating decision, entitlement to a total disability rating based on individual unemployability (TDIU) was granted. As discussed below, the Acting Veterans Law Judge who signed the July 2003 remand is no longer employed at the Board, and there is an outstanding request for another hearing. In the July 2003 remand, the Board noted that the Veteran had raised the issue of entitlement to compensation for the eye disability under the provisions of 38 U.S.C.A. § 1151 and referred the issue to the RO. Review of the claims file does not indicate that this claim was developed. Based on subsequent grants of service connection, the Board finds that the Veteran/representative should clarify whether the Veteran wishes to proceed with an 38 U.S.C.A. § 1151 claim. The issue of service connection for a bilateral eye disability is remanded to allow for the scheduling of an additional Board hearing. In addition, after review of the development completed pursuant to the prior remands, the Board finds that additional development is required. This development should be completed to the extent that it can be done prior to the scheduled Board hearing. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran has been afforded two prior Board hearings regarding the issue of service connection for a bilateral eye disability; this is the only remaining issue on appeal. The undersigned Veterans Law Judge conducted the May 2000 Board hearing. An Acting Veterans Law Judge also conducted a December 2002 hearing; he is, however, no longer employed at the Board. See 38 C.F.R. § 20.707. The Veteran was notified of this and requested another hearing. Although cognizant that the Veteran has been provided a hearing on the issue remaining on appeal conducted by the undersigned, in light of the development in this case since that May 2000 hearing and cognizant that the Veteran was asked if she wanted another hearing, the Board finds that a remand is required to schedule the Veteran for the additional hearing she subsequently requested. See 38 C.F.R. § 20.704. Although the primary purpose of this remand is to provide for the scheduling of an additional hearing, after review of the claims file, the Board directs additional development be completed prior to the Board hearing, time permitting. The last supplemental statement of the case was issued in June 2006. Substantial additional evidence has been associated with the claims file subsequent to this supplemental statement of the case, to include a May 2007 VA eye treatment record and a November 2008 VA general medical examination. Upon remand, the AMC/RO should issue a supplemental statement of the case that considers the evidence added to the file since the June 2006 supplemental statement of the case. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. Pursuant to the July 2003 Board remand, the Veteran was issued an August 2003 Veterans Claims Assistance Act of 2000 (VCAA) notification letter. This letter provided the elements of a basic service connection claims. After review of this letter, the Board finds upon remand the Veteran should be issued an additional notification letter that includes the elements of a secondary service connection claim, as the claim on appeal includes the contention that the disability is due to other service-connected disabilities. See 38 C.F.R. § 3.310. The Veteran underwent an April 2006 VA eye examination. The examiner completed the examination report without review of the complete claims file. After review of this examination report, the Board finds that the Veteran should be scheduled for an additional examination, during which the examiner will have benefit of review of the complete claims file. The examiner should address whether the Veteran has a current acquired eye disability attributable to service. In addition, the examiner should address whether the disability is secondary to a previously service-connected disability - based on the contention that the eye disability developed secondary to the taking of medication for a service-connected disability. Specifically, in this regard, the Veteran has contended that the eye disability was due to the previous taking of the medication Plaquenil. The examiner should clarify whether this medication was taken for a service-connected disability. If taken for a service- connected disability, the examiner should address whether the Veteran has a current acquired eye disability due to the taking of Plaquenil. The Board notes that refractive error of the eye is not a disease for VA purposes. See 38 C.F.R. § 3.303. Accordingly, the case is REMANDED for the following action: 1. The RO must schedule the Veteran for a Travel Board hearing in conjunction with her claim for service connection for a bilateral eye disability. 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. §§ 19.75, 19.76, 20.703, 20.704 (2008). After the hearing is conducted, the case should be returned to the Board, in accordance with appellate procedures. 2. Prior to the date of the Travel Board hearing, however, the AMC/RO should complete the following development, time permitting: a) Review the record and ensure compliance with all notice and assistance requirements set forth in the VCAA by issuing the Veteran an additional notification letter regarding the claim for service connection for a bilateral eye disability. This notice should include an explanation as to the information or evidence needed to establish a disability rating and an effective date for the benefit sought as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This letter should also provide notice of secondary service connection under 38 C.F.R. § 3.310. b) The Veteran should be scheduled for a VA examination. The claims file should be sent to the examiner. Following the review of the relevant evidence in the claims file, the clinical examination and any tests or diagnostic studies deemed necessary, the examiner should provide answers to the following: i) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a current acquired bilateral eye disability [refractive error of the eye is not a disease for VA purposes] that began during service or is causally linked to any incident of active duty? ii) Is it at least as likely as not (50 percent or greater probability) that the Veteran was placed on the medication Plaquenil for a service- connected disability? Relevant service connected disabilities are asthma, mixed connective tissue disorder (lupus), and chronic right knee pain with degenerative changes and an ACL tear. Service connection is not in effect under a general claim for arthritis. If the Veteran was placed on Plaquenil for a service connected disability, is it as least as likely as not (50 percent or greater probability) that the Veteran has a current acquired bilateral eye disability that was caused or aggravated by the taking of Plaquenil? The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship or a finding of aggravation; less likely weighs against the claim. The examiner is also advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. The examiner is requested to provide a rationale for any opinion provided. If the examiner is unable to answer any question presented without resort to speculation, he or she should so indicate. c. Thereafter, the Veteran's claim for service connection on direct incurrence and secondary bases must be adjudicated on the basis of all of the evidence of record [to specifically include the evidence associated with the claims file since the June 2006 supplemental statement of the case] and all governing legal authority. If the benefit sought on appeal remains denied, the Veteran and her representative must be provided with a supplemental statement of the case. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ MARK W. GREENSTREET 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 Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2008).