Citation Nr: 1107498 Decision Date: 02/24/11 Archive Date: 03/09/11 DOCKET NO. 03-17 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether the severance of service connection for an acquired pathology of the left eye was proper. 2. Whether the evaluation for lamellar macular holes in the right eye was properly reduced to a noncompensable rating. 3. Entitlement to special monthly compensation under 38 U.S.C. 1114(m) for blindness in both eyes with light only perception. 4. Entitlement to a certificate of eligibility for assistance in acquiring an automobile or other conveyance with special adaptive equipment, or for special adaptive equipment only. 5. Entitlement to a certificate of eligibility for specially adapted housing or a certificate of eligibility for a special home adaptation grant. REPRESENTATION Veteran represented by: Blinded Veterans Association WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to August 1969. This matter came to the Board of Veterans' Appeals (Board) from a May 2001 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the RO in February 2003; the transcript is of record. In April 2005, the Board determined that there were procedural problems in the RO's rating decision and remanded the case for corrective action and readjudication. The RO issued a rating action in January 2006. On August 14, 2006, the Board determined that the severance of service connection for an acquired pathology of the left eye was proper; the evaluation for lamellar macular holes in the right eye was properly reduced to a noncompensable rating; entitlement to special monthly compensation under 38 U.S.C. 1114(m) for blindness in both eyes with light only perception was denied; entitlement to a certificate of eligibility for assistance in acquiring an automobile or other conveyance with special adaptive equipment, or for special adaptive equipment only was denied; and, entitlement to a certificate of eligibility for specially adapted housing or a certificate of eligibility for a special home adaptation grant was denied. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). In a May 2010 Memorandum Decision and Judgment, the Court determined that the Board erred in failing to discuss a medical article and medical evidence pertaining to the left eye, and failed to discuss medical evidence pertaining to the right eye. The remaining issues were remanded as they were considered inextricably intertwined with the left eye and right eye issues. The Court vacated the August 2006 decision and remanded the matter to the Board for further adjudication. 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 By way of background, the Los Angeles, California, RO granted service connection for defective vision of the right eye in March 1970 and assigned a 30 percent rating from August 1969. The Indianapolis, Indiana, RO issued a rating decision in July 1973 that assigned a 90 percent disability rating for 20/400 vision in his left eye and blindness in his right eye. A total disability rating based on individual unemployability was assigned from June 1973. Financial records show that notice of the decision was sent to the Veteran at an Indianapolis mailing address. The disability rating was increased to 100 percent effective October 1974 based, in part, on the finding that the Veteran's visual acuity in the left eye was 3/400. In May 1980, the Veteran underwent an ophthalmology outpatient examination. Upon examination, the examiner noted unremarkable OU (both eyes); macular-holes present OU - atrophic; post-pole otherwise WNL (within normal limits). The examiner diagnosed probable solar retinopathy. In November 1982, the Veteran underwent a VA examination with 'Ophthalmology Service.' Upon examination, the examiner stated that the Veteran acquired bilateral macular holes at some point which sounds like it occurred while he was in Vietnam in 1968 in the right eye and perhaps in association with the automobile accident in the left eye in 1971. The exact etiology of the macular holes is entirely unclear but conceivably this could be the appearance of solar retinopathy or it could be traumatic macular holes secondary to severe trauma causing posterior vitreous detachments. The examiner stated as follows: I am somewhat puzzled by the markedly decreased vision in both eyes which is asymmetric. Ordinarily with macular holes one would anticipate a visual acuity in the vicinity of 20/400 but usually not much worse. Also, since there is marked asymmetry of the visual acuity, I was somewhat surprised that there was no afferent papillary defect. I think this patient definitely has impaired vision but I am unable to state confidently that his visual acuity is as poor as he claims. It might be useful at some point to do electrophysiologic testing such as pattern reversal, acuity VERs at the University of Florida to see if the estimated cortical potentials agree with the subjective responses. Also, one might assess the latencies on the VER which could give a clue to bilateral optic nerve disease, perhaps traumatic in nature which is not evident on examination. Correspondence dated in March 1983 from William W. Dawson, Ph.D., states that the Veteran was seen in February 1983. A series of electrophysiological measures including electroretinograms, visual evoked responses to flash and pattern stimulation and laser interferometric measures of acuity were completed with good accuracy. All results consistently indicated lower visual function in the right eye, in contrast to the left eye. Cortical VER responses resulting from pattern stimulation indicate a threshold approximately 20/180-20/200 (Snellen notation) in the left eye and approximately 20/600-20/800 in the right eye. These are consistent with the interferometric measures which indicate roughly 20/300, left eye, and 20/600, right eye. The RO received an anonymous phone call in June 1996. The caller reported that the Veteran was not blind, and that he had been seen driving all the time. The caller also indicated that the Veteran frequently bragged about "faking" his blindness to VA. As a result of the June 1996 phone call, VA launched a field examination. The field examiner's report included a copy of an October 1993 eye examination conducted by the Florida Department of Highway Safety and Motor Vehicles. The report indicated that the Veteran's uncorrected vision was 20/40 in the right eye, 20/25 in the left eye, and 20/25 in both eyes. His vision was the same with correction. The eye examiner also noted that there was no evidence that the Veteran suffered from an eye disease or injury that would affect his driving, and that the Veteran met or exceeded the minimum acceptable binocular or monocular horizontal field of vision of 140 degrees. A copy of the Veteran's State of Florida driver's license was also included with the field examination report. A non-commercial driver's license was issued to the Veteran in October 1993 without restrictions. A VA eye examination was conducted in July 1999. At that time, the Veteran's visual acuity in his left eye (corrected and uncorrected) was counting fingers at one foot. The left cornea and lens looked clear. The left anterior chamber was deep and clear. The left fundus revealed that the retina was normal and the disc was slightly pale. There was no evidence of double vision or visual field deficit. The diagnosis was that the Veteran was legally blind. However, the examiner added that there was "no real ocular pathology to explain the very severe visual loss." A VA ophthalmology examination in March 2003 found optic nerve pallor but not enough to explain the Veteran's report of profound visual loss. There was no evidence of a macular hole. Magnetic resonance imaging (MRI) of the brain and orbits in April 2003 showed a normal study. In an addendum report, the March 2003 VA examiner stated that there was "no pathology to explain [the Veteran]'s seemingly severe loss of vision and high level of function. I do not see an organic cause for his eye problem." The RO later obtained a statement from Nancy M. Kirk, M.D., the VA ophthalmologist who conducted the March 2003 examination. Dr. Kirk stated that in reviewing the record it was clear that as far back as his period of service there was not a single objective test that documented any known eye disease in the Veteran other than his preexisting amblyopia. His MRI was normal and multiple diagnoses were offered to explain his visual loss. I believe that [the Veteran] consistently attempted to defraud [VA.] He reported visual loss that was simply not present from the first day of his purported visual loss in the right eye while in the service....He has a perfectly normal MRI, fluorescein angiogram, and everything objective in his exam then and now indicated that it was the visual acuity that was in error. This was the only subjective part of the testing. It didn't make sense then and it doesn't make sense now. I believe that [the Veteran] has a pattern of intentionally deceiving medical examiners for the purposes of attaining and keeping his disability payments from the VA....When not being examined, he performed every day tasks like painting the eaves of a house on a ladder, driving a car and ambulating without difficulty that prove that he simply does not have the profound visual loss that he claims. Correspondence dated in December 2010 from Mark S. Dresner, M.D., F.A.C.S., states that the Veteran was seen and his visual acuity is bare finger counting/hand motions in each eye and his intraocular pressure is 15 mm Hg (Normal). His retinal examination revealed full-thickness macular holes and inferior peripheral retinal scarring in the left eye, as a result of severe head trauma sustained in the military. Initially, the Board notes that with the December 2010 statement from Dr. Dresner, the Veteran submitted an 'Authorization and Consent to Release Information' to VA with regard to Dr. Dresner. The RO/AMC should request the Veteran's records from Dr. Dresner. The issues of entitlement to special monthly compensation under 38 U.S.C. 1114(m) for blindness in both eyes with light only perception; entitlement to a certificate of eligibility for assistance in acquiring an automobile or other conveyance with special adaptive equipment, or for special adaptive equipment only; and, entitlement to a certificate of eligibility for specially adapted housing or a certificate of eligibility for a special home adaptation grant hinge on the Board's determination as to whether the severance of service connection for an acquired pathology of the left eye was proper and whether the evaluation for lamellar macular holes in the right eye was properly reduced to a noncompensable rating, thus such issues are inextricably intertwined, and the Board will defer consideration of the appeal with regard to these issues. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following actions: 1. Request the Veteran's treatment records from Dr. Dresner. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 2. AFTER completion of the above, it should be requested that Nancy M. Kirk, M.D., provide an addendum opinion and discussion as the following: a. Please provide an opinion as to presence of any left eye pathology in consideration of the evidence of record, to include findings documented in the May 1980 ophthalmology outpatient examination; findings documented in the March 1983 correspondence from Dr. Dawson; and, findings documented in the December 2010 correspondence from Dr. Dresner and any related treatment records. Dr. Kirk should discuss any findings of macular holes in determining the presence of any left eye pathology. b. Please provide an opinion as to the presence of any right eye pathology in consideration of the evidence of record, to include the findings documented in the March 2003 VA examination report, April 2003 MRI, October 1993 driver's examination, July 1984 VA examination report, March 1983 correspondence from Dr. Dawson, November 1982 VA examination report, May 1980 examination report, and October 1974 VA examination report. If deemed necessary, the Veteran should be scheduled for a VA examination and thereafter an opinion should be proffered. It should be specified whether additional testing using contact lens and biomicroscope or optical coherence tomography is necessary to determine the presence of macular holes or other pathology. The claims file should be made available to Dr. Kirk for review in connection with the examination. All clinical and special test findings should be clearly reported. All opinions and conclusions expressed must be supported by a complete rationale in a report. IN THE EVENT Dr. Kirk is unavailable to provide an addendum opinion, it should be requested that an ophthalmologist retinal specialist provide an opinion as to the following: a. Please provide an opinion as to presence of any left eye pathology in consideration of the findings documented in the record, to include a specific discussion of the findings documented in the December 2010 correspondence from Dr. Dresner and any related treatment records; March 2003 VA examination report (and 2005 addendum opinion) of Dr. Kirk; July 1999 VA examination report; October 1993 driver's examination; July 1984 VA examination report; findings documented in the March 1983 correspondence from Dr. Dawson; May 1980 ophthalmology outpatient examination report; and, October 1974 VA examination report. The examiner should discuss any findings of macular holes in determining the presence of any left eye pathology. b. Please provide an opinion as to the presence and extent of any right eye pathology in consideration of the evidence of record, to include the findings documented in the March 2003 VA examination report; April 2003 MRI; October 1993 driver's examination, July 1984 VA examination report; March 1983 correspondence from Dr. Dawson; November 1982 VA examination report; May 1980 examination report; and, October 1974 VA examination report. If deemed necessary, the Veteran should be scheduled for a VA examination and thereafter an opinion should be proffered. It should be specified whether additional testing using contact lens and biomicroscope or optical coherence tomography is necessary to determine the presence of macular holes or other pathology. All clinical and special test findings should be clearly reported. All opinions and conclusions expressed must be supported by a complete rationale in a report. 3. After completion of the above, the RO should review the expanded record and readjudicate the issues on appeal. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran and his representative have the right to submit additional evidence and argument on the 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). _________________________________________________ THOMAS J. DANNAHER 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).