Citation Nr: 1137294 Decision Date: 09/30/11 Archive Date: 10/11/11 DOCKET NO. 07-20 666A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for visual impairment as secondary to the Veteran's service-connected diabetes mellitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Diliberto, Associate Counsel INTRODUCTION The Veteran had active service from March 1972 to December 1993. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from February 2006 and June 22006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran appealed that decision and the case was referred to the Board for appellate review. The Board notes that the Veteran testified at a September 2009 Travel Board hearing before a Veterans Law Judge. A transcript of that proceeding is of record and has been associated with the claims file. This case was previously before the Board in February 2010, on which occasion the Board granted service connection for diabetes mellitus and remanded the Veteran's claim of service connection for visual impairment. The February 2010 Board action also remanded the Veteran's claims of entitlement to service connection for sexual dysfunction and peripheral neuropathy. The grant of service connection for those conditions in a June 2011 rating decision is a complete grant of the benefits sought, and, therefore, those matters are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Unfortunately, the claims file reflects that further action is warranted, even though such will, regrettably, further delay an appellate decision on this claim. Accordingly, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran has claimed entitlement to service connection for visual impairment. Although the Board regrets the additional delay, the United States Court of Appeals for Veterans Claims (Court) has held that the Board is obligated by law to ensure that the RO complies with its directives; and where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran first claimed entitlement to service connection for diabetes mellitus in June 2002. In a February 2002 rating decision the RO denied entitlement to service connection for that disorder. The Veteran again claimed entitlement to service connection for diabetes mellitus in June 2005, at which time he also claimed entitlement to service connection for eyesight problems which he asserted were secondary to his diabetes. Entitlement to service connection for diabetes mellitus was first granted in a February 2010 Board decision. That decision also remanded the Veteran's claim of entitlement to service connection for visual impairment, finding that a VA examination was necessary. The Board's remand directives instructed the examiner to render an opinion as to whether it is at least as likely as not that any visual disability had its origin in service. The Board also asked for an opinion as to whether any visual disability had any relationship to his service-connected diabetes mellitus. Finally, the Board requested that the examiner provide an opinion as to whether any visual disability was aggravated by a service-connected disability. Following the Board's remand, the Veteran was provided a VA examination in support of his claim. The examiner stated that the Veteran had diabetes without retinopathy. He diagnosed the Veteran with hyperopia OS with presbyopia OU. He stated that this is a naturally occurring refractive disorder and as such is more likely not related to the Veteran's service-connected diabetes. Unfortunately, this examination report failed to provide the information requested in the Board's February 2010 remand. Specifically, the examiner did not opine as to whether any visual disability had its origin in service or whether any visual disability has been aggravated by a service-connected disability. The Board also notes that the examiner did not indicate whether the claims file was reviewed. Accordingly, the extent to which any visual disability is etiologically related to service or to a service-connected condition is still unclear. As such, the RO/AMC should schedule the Veteran for an additional examination. For the reasons stated above, and in order to give the Veteran every consideration with respect to the present appeal, further development of the case is necessary. This case is being returned to the RO via the Appeals Management Center (AMC) in Washington, D.C., and the Veteran will be notified when further action on his part is required. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain updated VA treatment records as well as take any appropriate action to obtain pertinent treatment records from any other providers who may have evaluated the disabilities at issue in this remand. If the Veteran indicates that he has received any treatment or evaluations, the RO/AMC should obtain and associate those records with the claims file. 2. Thereafter, the RO/AMC should schedule the Veteran for an appropriate examination to determine the precise nature and etiology of any visual disability. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The claims file must be made available to and be reviewed by the examiner prior to the examination and the examination report should so indicate. Following a thorough evaluation the examiner is asked to determine the precise nature of any visual disability. The examiner should also state whether it is at least as likely as not (a 50 percent or greater probability) that any visual disability began in or is related to active service. Finally, the examiner should state whether it is at least as likely as not that any visual disability was caused or has been aggravated by any service-connected disability. A complete rationale for each opinion offered should be included, and an explanation of the principles involved would be of considerable assistance. 3. When the requested development has been completed the case should again be reviewed by the RO, to include consideration of any additional evidence submitted. If the benefit sought is not granted the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 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). _________________________________________________ JAMES L. MARCH 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).