Citation Nr: 1300915 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 06-38 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for loss of vision in the right eye. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran had active military service from August 1972 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefit sought on appeal. The RO in Houston, Texas, currently has jurisdiction over the appeal. A transcript of the Veteran's testimony at a January 2012 Travel Board hearing before the undersigned Veterans Law Judge (VLJ) sitting at Houston, Texas, is on file. In April 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The case has now been returned to the Board for appellate disposition. The issue of entitlement to an increased rating for the left corneal scar due to flashburn, currently evaluated as noncompensable (0 percent disabling), has been raised by the record in an April 2012 statement by the Veteran, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claim can be properly adjudicated. In April 2012, the Board remanded the Veteran's claim to the RO/AMC for, in pertinent part, a VA medical opinion. Upon remand, the Veteran was afforded a VA examination and medical opinion in June 2012. Following a physical examination of the Veteran and a review of the claims file, the June 2012 VA examiner determined that the Veteran was legally blind in his right eye, which is an additional disability that he did not have prior to the July 2003 VA eye surgery. The examiner then determined that the blindness was due to severe optic atrophy. The examiner further found that the Veteran did not suffer additional disability due to VA carelessness or negligence, "but rather an unfortunate combination of preexisting optic atrophy condition in both eyes that progressed dispite every effort of the VA to save the vision in his right eye with prompt and appropriate retinal detachment surgery." The Board finds this VA medical opinion to be inadequate. The VA examiner, after determining that the Veteran had an additional disability, did not address the initial question of causation, i.e., whether the July 2003 VA eye surgery caused the Veteran's current, additional disability of blindness in the right eye. Specifically, the examiner found that the Veteran's pre-existing optic atrophy progressed, but the examiner did not address whether this progression (i.e., aggravation) was caused by the VA's July 2003 eye surgery. The examiner then jumps to the third prong of establishing a 38 U.S.C.A. § 1151 claim, but fails to address whether the vision loss was reasonably foreseeable. The Board is prohibited from relying on its own unsubstantiated medical judgment in the resolution of a claim. See Crowe v. Brown, 7 Vet. App. 238 (1995); Austin v. Brown, 6 Vet. App. 547 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, this claim must again be remanded for the RO/AMC to obtain a VA addendum medical opinion for the issue. See Stegall v. West, 11 Vet. App. 268 (1998) (noting that where the remand orders of the Board or the United States Court of Appeals for Veterans Claims are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated). Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC shall ask the June 2012 VA examiner to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for a VA eye examination with an appropriate expert. The VA examiner should thoroughly review the Veteran's VA claims file, as well as a complete copy of this Remand in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. The VA examiner is requested to specifically address the following: (a) Is it at least as likely as not (i.e., whether it is 50 percent or more probable) that the July 2003 VA eye surgery caused the Veteran's current, additional disability of loss of vision in his right eye? (i) If yes, then is it at least as likely as not that this additional disability (i.e., loss of vision in the right eye) was reasonably foreseeable? (ii) If yes, then is it at least as likely as not that this additional disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment (i.e., VA failed to exercise the degree of care that would be expected of a reasonable health care provider OR VA furnished the medical treatment without the Veteran's informed consent)? The examiner should discuss any other medical opinions on this issue in the record and clearly outline the rationale for any opinion expressed in a typewritten report. 2. After the above action has been completed, readjudicate the Veteran's claim. If the claim remains denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. 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 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. 2012). _________________________________________________ DEBORAH W. SINGLETON 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 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) (2012).