Citation Nr: 1309155 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 08-22 992A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a right eye disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to August 1969, including service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which, in relevant part, denied the benefit sought on appeal. In his August 2008 substantive appeal (on VA Form 9), the Veteran indicated that he would like to be scheduled for a hearing before a Veteran's Law Judge (VLJ) of the Board at his local VA office. However, in February 2012, the Veteran indicated that wished to withdraw his hearing request. Therefore, the Board deems his Board hearing request to be withdrawn. See 38 C.F.R. § 20.704(e) (2012). Although the Veteran also perfected an appeal with respect to the denial of his claim of entitlement to service connection for coronary artery disease, this claim was subsequently granted in a June 2011 rating decision. Therefore, that claim is no longer in appellate status, as the benefit sought on appeal was awarded. 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 on his part.- The issue of entitlement to service connection for residuals of a shrapnel wound to the head and brain has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See May 2010 statement. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this claim so that the Veteran is afforded every possible consideration. The Veteran has put forth multiple theories as possible causes of his claimed right eye disability. He initially raised the contention that the disability developed as secondary to arteriosclerosis (and later hypertension) as part of his service-connected coronary artery disease. He has also attributed the development of the disability to the medications used to treat his service-connected low back disability. Finally, he has contended that the disability was developed directly as a result of an in-service trauma to his head and/or as a result of suffering shrapnel wounds to the head and brain during an explosion in service. The Veteran's post-service private treatment records reveal a diagnosis of perfused central retinal vein occlusion (CRVO) of the right eye in November 2004, after suffering from pain around his eye for approximately one month. He was also suspected of having glaucoma at that time. During a more recent October 2009 VA ophthalmologic consultation, the Veteran was diagnosed with a history of CRVO with a history of chronic cystoid macular edema of the right eye, with current atrophic changes and vision in the 20/40 - 20/60 range. The service treatment records (STRs) reveals no treatment for an eye disability. A july 1969 Report of medical History completed in conjunction with a Physical Evaluation Board notes a complaint of "eye trouble," but no objective findings of any eye disability were made in the accompanying examination. Moreover, while the STRs do show mortar fragment wounds to the lower extremities during service, they fail to provide any indication that the Veteran additionally suffered shrapnel wounds to his head or brain. Nonetheless, he has reported being involved in multiple explosions during service and his post-service VA treatment records reveal atrophy of the left frontal cortex. He was also found to have a 1.5 millimeter metallic object imbedded in the left frontal cortex. Where the Veteran's record shows that he may have been involved in combat with the enemy during his service, the provisions of 38 U.S.C.A. § 1154(b) are potentially applicable in this case. See VAOPGCPREC 12-99 (1999) (A determination that a veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding). Accordingly, although the Veteran's STRs do not show that he suffered shrapnel wounds to his head or brain during service, this contention must be appropriately be considered. The Veteran was afforded a VA eye examination in July 2007. The examiner noted the Veteran's concerns that his prior chronic CRVO was related to trauma. The examiner indicated that after reviewing literature on the topic, he found instances where trauma was associated with CRVO. However, in those cases there was a thrombosis of the central retinal vein, and the development was close to the time of the trauma itself. In the Veteran's case, there was a period of decades between his claimed trauma and the vein occlusion onset, and additionally, the Veteran had the risk factor of hypertension for vein occlusion. Thus, the examiner could not conclude with any certainty that the Veteran's diagnosed vein occlusion was attributable to trauma. Subsequent to the VA examination, the Veteran underwent a CT scan in May 2008 that clearly revealed a metallic fragment in the mid-left cerebral hemisphere. As a result of that report, the RO sought an additional medical opinion regarding the Veteran's right eye retinal vein disability in May 2010. At that time a VA physician provided the opinion that it was less likely than not that the right eye disability, which occurred decades after his wounds in Vietnam, is related to a metallic fragment noted on the May 2008 CT report. The physician noted that there was no indication of any head wound during the Veteran's service, and his retinal vein thrombosis was most likely related to chronic hypertension. The Board observes that July 2007 VA examiner's opinion is somewhat speculative in nature, where the examiner indicates that it is possible the Veteran's claimed disability was related to trauma, but does not indicate why a clearer etiology cannot be determined. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the second May 2010 VA physician's opinion is primarily based on an absence of records of treatment for a shrapnel injury in the Veteran's STRs, thus rendering the opinion inadequate for determining the nature and etiology of the Veteran's claimed right eye disability. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's STRs to provide a negative opinion); see also 38 C.F.R. § 4.2 (2012) (stating that 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). Indeed, despite the absence of a documented head injury in service the fact remains that a CT scan showed a metallic fragment. The record does not offer any other explanation for that finding, such as a post-service accident of some kind. Thus, the Board will resolve doubt in the Veteran's favor and accept as fact that he did suffer at least a minor in-service head injury. Additionally, there is no indication from the opinion that the physician reviewed the Veteran's claims file. Moreover, the Board observes that neither medical opinion considered secondary theories causation for the Veteran's eye disability; specifically, that the disability developed as secondary to his service-connected coronary artery disease or as secondary to his service-connected low back disability, as a result of the medications to treat his back pain. While both VA examiners have addressed the likelihood that the Veteran's right eye disability is related to his diagnosed hypertension, the Board notes that service connection is not in effect for hypertension and that his hypertension has not otherwise specifically been found to be associated with his service-connected coronary artery disease. Based on the foregoing, the Board finds that the Veteran's claim must be remanded in order to afford him a new VA examination to thoroughly address all potential theories of causation. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a new VA ophthalmologic examination. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner should diagnose and describe all right eye disabilities found to be present, to include any current or residual disability associated with his previously diagnosed central retinal vein occlusion. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current right eye disability, to include any residual disability associated with central retinal vein occlusion, had its onset during active service, or is related to any in-service disease, event, or injury, to include any shrapnel wound or trauma to his head. Unless the examiner can provide another explanation for the CT scan showing a metallic fragment, he or she is to accept as fact that at least a minor head injury occurred in service as to due to an in-service explosion. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current right eye disability was caused (in whole or in part) by his service-connected coronary artery disease, or his service-connected low back disability (i.e. as a result of medications to treat the low back disability). If not, the examiner should opine whether it is at least as likely as not that any current right eye disability was aggravated (permanently made worse) by his service-connected coronary artery disease, or his service-connected low back disability (i.e. as a result of medications to treat the low back disability). The examiner should fully address the lay and medical evidence of record regarding the incurrence of the Veteran's right eye disability. 2. Thereafter, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Finally, readjudicate the Veteran's service connection claim on appeal. If his claim remains denied, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return his appeal to the Board for further appellate review. The Veteran 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). _________________________________________________ ERIC S. LEBOFF 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. See 38 C.F.R. § 20.1100(b) (2012).