Citation Nr: 1305653 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 07-34 666 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for an eye disability, to include as secondary to service-connected type II diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran had active service from September 1967 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of March 2007 by the Department of Veterans Affairs (VA) Lincoln, Nebraska, Regional Office (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran contends that he is entitled to service connection for an eye disability on a secondary basis, to include as secondary to service-connected type II diabetes mellitus. The Board remanded this matter in April 2012 for a VA examination and opinion clarifying past findings. Although an examination was conducted in May 2012, the Board finds that it is not in compliance with the April 2012 remand. Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the Board asked the examiner to explain the discrepancy regarding the presence or absence of diabetic retinopathy as seen in the October 2006 VA treatment records and the January 2007, February 2007, and June 2010 VA examination reports. The examiner was also to explain the significance of the teleretinal imaging findings in October 2006. However, in the May 2012 examination report, the examiner merely stated that there was no February 2007 examination and that the January 2007, and June 2010 VA examinations did not show evidence of diabetic retinopathy. Nevertheless, the February 2007 VA diabetes mellitus examination made a specific finding of no visual symptoms related to the Veteran's type II diabetes mellitus, and the VA eye examinations dated January 2007 and June 2010 found no evidence of diabetic eye disease, to include retinopathy, but the May 2012 examiner did not address the abnormal teleretinal imaging findings from October 2006, which indicated moderate nonproliferative diabetic retinopathy; hence, the discrepancy regarding the presence or absence of diabetic retinopathy as seen in the October 2006 VA treatment records and the January 2007, February 2007, and June 2010 VA examination reports. Additionally, the Veteran's disabilities include dry eye syndrome. The May 2012 examiner said "[d]iabetes is not known to aggravate or cause dry eye syndrome." In January 2013, the Veteran's representative cited an article located on a U.S. government funded research website which indicates a relationship between dry eye syndrome and type II diabetes mellitus. See http://www.ncbi.nlm.nih.gov/pubmed/8012143. Since the examiner did not address the discrepancy of the October 2006 abnormal teleretinal imaging findings with the the January 2007, February 2007, and June 2010 VA examination findings, and in light of the new evidence suggesting a link between dry eye syndrome and type II diabetes mellitus, the Board finds that a remand is warranted for an addendum opinion. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of the issue currently on appeal. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must obtain all relevant VA medical records from October 2012 to the present. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) explain that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After the above development is completed, the claims file must be returned to the examiner who performed the May 2012 VA eye examination, if available. If the May 2012 examiner is not available to provide the addendum, another qualified examiner must be asked to review the claims file and provide the requested opinions. The claims file and all pertinent records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Following a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must explain the discrepancy regarding the presence or absence of diabetic retinopathy as seen in the October 2006 VA treatment records and the January 2007, February 2007, and June 2010 VA examination reports. The examiner must also explain the significance of the teleretinal imaging findings in October 2006 which indicate moderate nonproliferative diabetic retinopathy. Additionally, the examiner must provide an opinion as to whether any currently diagnosed eye disability is proximately due to or aggravated by the Veteran's service-connected type II diabetes mellitus. The examiner must specifically address the study identified by the Veteran which indicates a relationship between dry eye syndrome and type II diabetes mellitus. See http://www.ncbi.nlm.nih.gov/pubmed/8012143. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. After the requested medical opinion has been completed, the RO must review the medical report to ensure that it is in complete compliance with the directives of this remand. The medical report must be returned to the examiner if it is deficient in any manner and the RO must implement corrective procedures at once. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).