Citation Nr: 1314647 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 10-32 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for left eye disorder. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran served on active duty during the Vietnam War Era and Peacetime, from July 1962 to October 1966. The matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by a Regional Office of the Department of Veterans Affairs (VA) in San Diego, California. The Veteran requested a hearing before a Veterans Law Judge (VLJ) by live videoconference in August 2010. The Board hearing was scheduled to occur in November 2012. However, the claim file does not contain any record that a hearing occurred. In March 2013, the Board received a statement from the Veteran which indicated that the Veteran's VA Examination was inadequate and that he would like to proceed with a hearing before a VLJ. This is further discussed below. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In August 2010, the Veteran requested a videoconference hearing before the Board at the RO in connection with the current claim for service connection for left eye disorder. See VA Form 9. The Veteran was scheduled for a hearing in November 2012 at the RO; however, the record is not clear as to rationale, but the hearing was not conducted at that time. In March 2013, the Board received a statement from the Veteran which indicated that the hearing was delayed for the VA to obtain a "Clarification Statement" from a VA examiner for an amended medical opinion to address his left eye condition. See VA Form 21-4138. The Board finds that VA has not completed its duty to assist the Veteran because the VA examination afforded to the Veteran was inadequate. If VA provides the claimant an examination in accordance with a duty to assist, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In October 2011, the Veteran reported for a VA examination in connection with a different service connection claim. See VA Examination. The medical examiner diagnosed the Veteran with "macular scar of the left eye," but failed to provide a medical opinion as to whether the Veteran's left eye disorder is at least as likely as not caused by and/or the result of military service. Consequently, an addendum medical opinion is necessary. In a March 2013 statement, the Veteran indicated that he wished to have a Board hearing after the VA obtained a medical opinion regarding his left eye condition. The Veteran is entitled to a hearing before the Board at the RO. 38 C.F.R. §§ 20.700, 20.703 (2012). Therefore, upon remand, such hearing should be scheduled. Accordingly, the case is REMANDED for the following action: 1. Return the claims folder to the October 2011 examiner to obtain an addendum opinion regarding the Veteran's left eye disorder. If the October 2011 examiner is not available, the Veteran should be accorded a new VA examination by another medical professional. The Veteran's claims file, including a copy of this Remand, must be made available to the examiner for review in connection with the opinion. A notation that this review has occurred should be annotated in the addendum opinion. The examiner is requested to review the record, and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed left eye disorder had its clinical onset in service or is otherwise related to active duty. In answering this question, the examiner should address the Veteran's lay statements regarding the onset of his left eye disorder and the objective medical evidence. If necessary, all indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. A complete rationale should be given for all opinions and conclusions expressed. If the examiner finds that he/she must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity that this question is outside the scope of a medical professional conversant in VA practices. 2. Ensure that the examination report complies with (answer the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 3. The issue on appeal should then be readjudicated. If the benefit sought is not fully granted a supplemental statement of the case should be issued to the Veteran and his representative and they should be afforded an opportunity to respond thereto. 4. Schedule the Veteran for a videoconference hearing before a Veterans Law Judge at the RO regarding the claim for service connection for left eye disorder. A copy of the notice scheduling the hearing should be placed in the claims folder. The appellant 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. 2012). _________________________________________________ MILO H. HAWLEY 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).