Citation Nr: 1136810	
Decision Date: 09/29/11    Archive Date: 10/11/11

DOCKET NO.  07-02 478	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for an eye disability.


REPRESENTATION

Veteran represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

Kristy L. Zadora, Associate Counsel


INTRODUCTION

The Veteran had active duty service from March 1971 to June 1997.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2006 rating decision of the Roanoke, Virginia Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the Veteran's request to reopen his claim for service connection for an eye disability.

The Veteran failed to appear for a RO (Travel Board) hearing scheduled in July 2008.  His request for a hearing is therefore considered withdrawn.  See 38 C.F.R. § 20.702 (e) (2010).

In January 2010, the Board granted the Veteran's request to reopen his claim for service connection for an eye disability and remanded this reopened claim for additional development.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC).  VA will notify the appellant if further action is required.


REMAND

In January 2010, the Board remanded the appeal to provide a VA examination to determine the nature and etiology of any current eye condition, including opinions as to whether any current eye condition was a refractive error, a congenital defect, of a congenital disease that had been aggravated in service.  

An examination was conducted in March 2010.  The examiner identified the current eye condition being presbyopia that was "naturally occurring" but did not state whether the condition was a refractive error or congenital disease or defect.  The Board is not permitted to substitute its own medical opinions for those of medical professionals.  Colvin v. Derwinski, 1 Vet. App. 171 (1990).  A number of memorandum decisions of the United States Court of Veterans Appeals have found that the Board committed such errors when it found presbyopia to be a refractive error without a supporting medical opinion.

In addition, a remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  In Stegall the Court held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance."  Id.

Accordingly, this case is REMANDED for the following:

1.  The claims file, including this REMAND, should be forwarded to the examiner who provided the March 2010 examination.  

The examiner should clarify whether the Veteran has had any eye abnormality other than presbyopia at any time since November 2005.  

The examiner should clarify whether presbyopia, and any other current eye abnormality, is a refractive error.

The examiner should clarify whether presbyopia, and any other eye abnormality is a congenital defect or a congenital disease.

If there is any current congenital eye disease, the examiner should clarify whether the disease was aggravated in service (underwent an increase in underlying disability).

If the examiner who provided the March 2010 examination is not available, another medical professional with the necessary expertise should review the claims folder and provide the necessary opinions.

If further examinations are needed, the Veteran should be afforded those examinations.

2.  The RO or AMC should review the examination addendum to insure that it contains all the information and opinions sought in this remand.

3.  If the benefit sought on appeal remains denied, the RO or AMC should issue a supplemental statement of the case, before the appeal is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  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 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).





____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  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) (2010).