Citation Nr: 1302218 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 04-02 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for an injury to the cornea of the left eye. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service from July 1960 to June 1962. He also had active duty for training (ACDUTRA) for 14 days in June and July 1959, and for 14 days in May and June 1960. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran testified at a February 2005 Board videoconference hearing, chaired by a Veterans Law Judge (VLJ) who has since retired. However, the Veteran indicated in September 2006 correspondence that he did not want another hearing with a different VLJ. See 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012) (the VLJ who conducts a hearing on an appeal generally must participate in any decision made on that appeal). Therefore, as the Veteran has turned down the opportunity for another hearing, the Board will proceed to evaluate the appeal. In June 2005, December 2006, and July 2008, the Board remanded this case for further development. After completion of this development by the RO, the case was returned to the Board for further appellate consideration. In a December 2008 Board decision, the Board denied the service connection issue on appeal for an injury to the cornea of the left eye. In that same decision, the Board denied service connection for cataracts of the left eye and service connection for an injury to the retina of the left eye. These particular service connection issues were not appealed by the Veteran. As such, they are not presently before the Board. However, the Veteran appealed the Board's decision to deny service connection for an injury to the cornea of the left eye to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a September 2009 Court Order and Joint Motion for Remand (Joint Motion) filed by the parties, the Court vacated the Board's decision on the issue of service connection for a left eye cornea injury and remanded it for compliance with specific instructions. Specifically, the Joint Motion noted that January 2007 and August 2008 VA examinations and opinions failed to provide an adequate rationale or explanation for the opinions reached. Also, the VA examiner for each opinion failed to address the Veteran's lay assertions regarding the occurrence of an in-service left eye injury. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Finally, the VA examiner failed to discuss or explain "the different diagnoses assigned to the Veteran's [left eye] disorder at entrance and at separation" as required by the Board. In short, the August 2008 VA addendum opinion failed to comply with the Board's July 2008 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders). The Joint Motion concluded that the Board did not demonstrate compliance with VA's duty to assist, as it failed to procure an adequate VA examination / opinion, thus rendering the reasons and bases for its denial inadequate. See 38 U.S.C. §§ 5103A, 5107(b), 7104(d). Upon return from the Court, the Board again remanded this case in January 2010, May 2011, and May 2012 for further development, to include additional VA opinions as to etiology. After completion of this development by the RO, the case has been returned to the Board for further appellate consideration. Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Before addressing the merits of the service connection claim for an injury to the cornea of the left eye, the Board finds that additional development of the evidence is required. The Veteran has alleged that he sustained an injury to the left eye in 1960 while in service when he slipped off a ladder and landed on his face. He has stated that no treatment was given at the time. He says that this injury aggravated a preexisting left eye corneal scar that was noted at enlistment. Over the years, post-service, there was a steady deterioration of his visual acuity in the left eye. In support of his allegations, he submitted a copy of a picture taken of him aboard the USS Intrepid between 1960 and 1962 showing him standing between the bunks and lockers facing the camera with a visible swelling underneath the left eye. It appeared that he had a discoloration of the skin. He also has been diagnosed with a nonservice-connected left eye cataract due to diabetes and smoking, A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. The Court has clarified that only substantial compliance, and not strict compliance, with the terms of an opinion request are required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In any event, the Court routinely vacates Board decisions based on this situation. Although, regrettably, it will result in additional delay in adjudicating this appeal, a remand is required to ensure compliance with the Board's previous May 2012 remand directives as to the left eye cornea injury issue on appeal. The RO must obtain a VA addendum opinion (another VA examination is not necessary) from the June 2012 VA examiner with regard to the Veteran's left eye cornea injury, on the basis of aggravation of a disorder that preexisted service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Although the RO secured a VA opinion and addendum both dated in June 2012 as instructed in the remand, the VA examiner, Dr. S.S., MD., an ophthalmologist, failed to provide an adequate rationale for his opinion. Specifically, the Board requested the June 2012 VA examiner to opine as to whether it is as likely as not (i.e., to at least a 50-50 degree of probability) that any currently found disorder of the left cornea was aggravated beyond its natural progression by the Veteran's service, specifically the claimed injury in service. Most notably, it was requested that "reasoning be afforded in support of any opinion provided." The June 2012 VA examiner opined that the preexisting corneal scar and the staphyloma noted at separation were "one and the same." He assessed it was "less likely than not" that any injury received at the time of the Veteran's in-service fall contributed to further damage of the left eye. The VA examiner added that he "cannot determine" through of a review of the Veteran's medical records whether any further damage to the left cornea occurred as nothing was documented at the time of the in-service injury. Regardless, the VA examiner failed to provide a complete rationale for his opinion. Specifically, the VA examiner failed to discuss whether in-service eye examinations conducted at enlistment (January 1959), at entrance (July 1960), and at separation (May 1962), revealed a permanent decrease in visual acuity in the left eye or any additional left eye cornea scar damage. It is essential that the VA examiner discuss the relevant in-service medical evidence that is clearly of record, in answering the specific questions posed. A medical opinion must support its conclusions with analysis. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions [without reasoning or rationale]." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 18, 22 (2007). Because neither VA nor the Court can exercise independent medical judgment in deciding an appeal, a medical opinion needs to include a supporting rationale that can be weighed against the other opinions and evidence of record as part of the Board's reasons and bases. Therefore, the claims folder will be returned to Dr. S.S., who provided the June 2012 VA opinion, to provide an addendum opinion. See 38 C.F.R. § 4.2 (if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). If the June 2012 VA examiner is no longer available, another qualified VA clinician will provide the addendum opinion. Another VA examination is not necessary in the present case. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must secure a VA addendum opinion from the June 2012 VA examiner, Dr. S.S., MD., for the left eye cornea injury. If the June 2012 VA examiner is no longer available, another qualified VA clinician must provide the addendum opinion. (Another VA examination is not necessary, as a diagnosis of a current left eye cornea scar is already established). The June 2012 VA examiner (Dr. S.S.), or other qualified VA clinician, must provide an addendum medical opinion separately answering the following questions: (i) Did the Veteran's preexisting left eye cornea scar which was noted upon enlistment and induction into service PERMANENTLY INCREASE in severity during his military service from July 1960 to June 1962? (ii) If there was a permanent increase in severity of the Veteran's left eye cornea scar during his military service, is it "undebatable" or "obvious" or "absolutely certain" this permanent increase in severity was due to the natural progression of the disability? (iii) For purposes of this VA opinion request, the clinician is directed to assume that the Veteran is COMPETENT and CREDIBLE in his lay assertion that he injured his left eye in 1960 while in service when he slipped off a ladder and landed on his face. The Veteran has submitted a copy of a picture taken of him aboard the USS Intrepid between 1960 and 1962 showing him standing between the bunks and lockers facing the camera with a visible swelling underneath the left eye. It appeared that he had a discoloration of the skin. However, the main question in this case is whether this confirmed in-service injury permanently worsened a left eye cornea scar that preexisted service. (iv) In making the above determinations, THE VA EXAMINER MUST PROVIDE A COMPLETE RATIONALE for his opinions. The language of the previous June 2012 VA opinion and addendum failed to provide a complete rationale. This time, the VA examiner MUST DISCUSS whether in-service eye examinations conducted at enlistment (January 1959), at entrance (July 1960), and at separation (May 1962), revealed a permanent decrease in visual acuity in the left eye or any additional left eye cornea scar damage. In addition, the VA examiner should discuss whether or not any decreased visual acuity in the left eye post-service is due to cataracts or any other nonservice-connected cause. 2. The RO/AMC must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Thereafter, the RO/AMC must consider all of the evidence of record and readjudicate the issue of service connection for an injury to the cornea of the left eye. If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. 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. 2012). _________________________________________________ H. N. SCHWARTZ 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) (2012).