Citation Nr: 1229488 Decision Date: 08/27/12 Archive Date: 09/05/12 DOCKET NO. 06-02 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an eye disability, to include as secondary to his service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1969 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a Board hearing at the RO in April 2008 before the undersigned Veterans Law Judge. A copy of the transcript of that hearing has been associated with the record on appeal. 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 issues were remanded for further development by the Board in November 2009 to afford the Veteran a VA examination and medical nexus opinion. The examination was provided in March 2010. The Board remanded the issue for a second time in June 2011 to allow the VA examiner to provide an addendum to his original nexus opinion to address the issue of aggravation. The addendum was provided in August 2011. In his addendum the examiner noted that there was no association between diabetes and the Veteran's eye disabilities; however, at no point did he specifically address aggravation. Although the Board regrets the need to further prolong or delay a final decision in this case, the Board must remand the case again to ensure RO compliance with the June 2011 remand. See Stegall v. West, 11 Vet.App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. If possible, the claims file should be referred to the same examiner who provided the August 2011 addendum. The examiner should extend his comments to include an opinion as to whether it is at least as likely as not (a 50% probability or more) that the Veteran's diabetes mellitus aggravated his eye disabilities. The examiner should specifically address the issue of aggravation separate from the issue of causal relationship. If the examiner cannot provide an opinion without further examination, the Veteran should be afforded a new VA examination. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Should it not be possible for the same VA examiner to review the file, the Veteran should be afforded a new VA examination. The relevant documents in the claims file, to include service treatment records, should be made available to and reviewed by the examiner in connection with the new examination. Any tests deemed medically advisable should be accomplished. The examiner should clearly address the following: Whether it is at least as likely as not (a 50% probability or more) that any currently diagnosed eye disability was caused or aggravated by the Veteran's diabetes mellitus. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2011). 4. After completion of the above and any other development the RO/AMC should deem necessary, the RO/AMC should review the expanded record and determine if service connection for an eye disability is warranted. If the claim remains denied, 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, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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. 2011). _________________________________________________ ROBERT C. SCHARNBERGER 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) (2011).