Citation Nr: 1314735 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 06-31 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for blurred vision. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from November 1984 to December 1997, including in the Southwest Asia Theater of operations from January 1991 to May 1991. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran and his spouse testified in support of these claims during a hearing held before the undersigned Veterans Law Judge at the RO in May 2009. The transcript of this hearing is of record. The Board previously remanded the Veteran's claim in February 2010 and August 2012. The issue of entitlement to service connection for tinnitus has been raised by the record and was previously referred by the Board in the prior decision, but has apparently 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 In the August 2012 remand, the Board sought to afford the Veteran a VA examination for his claimed blurred vision. The examiner was instructed to indicate whether the claimed blurred vision was due to a specific disease entity. If his complaints were not the result of a specific disease entity, the examiner was to provide an opinion as to whether any diagnosed disability was related to active service, or incurred due to or aggravated by a service connected disability. If blurred vision was not related to any specific diagnosis, then the examiner was to opine as to whether it was a manifestation of an undiagnosed illness. The Veteran was afforded a VA eye examination in September 2012. The examiner noted the Veteran's complaints of blurred vision that varied throughout the day. After examination, the examiner stated that there was no decrease in visual acuity or other visual impairment. The examination did result in diagnoses of a vitreous tuft and a corneal scar, but the examiner did not provide any of the requested opinions as to whether or not these diagnoses were related to service or to a service connected disability. The examiner did not provide any comments regarding an undiagnosed illness. The Veteran has the right to VA compliance with remand instructions. The Court has stated that compliance with remand instructions is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of any current disability manifested by blurred vision. All indicated tests and studies should be conducted. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current blurred vision is a manifestation of a diagnosed illness, to include the diagnoses of vitreous tuft and small corneal scar noted in the September 2012 examination report. If so, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any such diagnosed illness had its onset in service or is otherwise related to a disease or injury in service. The examiner should opine whether the vitreous tuft, small corneal scar, or any other diagnosed illness at least as likely as not (50 percent probability or more) had its onset in service or is otherwise related to a disease or injury in service, especially during the Veteran's service in the Persian Gulf. The examiner should also opine as to whether blurred vision or any diagnosed illness to include the vitreous tuft and small corneal scar is a manifestation of the service connected sinusitis, allergic rhinitis, fibromyalgia, folliculitis, somatoform disorder, or sleep apnea. The examiner should also indicate whether the Veteran has blurred vision or any diagnosed illness to include the vitreous tuft and small corneal scar that is secondary to, or aggravated (made permanently worse) by any service-connected disability. If the Veteran's blurred vision is not due to a diagnosed illness, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that it is an objective indication of chronic disability resulting from an undiagnosed illness related to the Veteran's Persian Gulf War service or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms. The examiner should also indicate all manifestations of the Veteran's blurred vision including impaired visual acuity or visual fields since 2005. The examiner must provide reasons for all opinions. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The absence of evidence of treatment for blurred vision in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The examiner is advised that the Veteran is competent to report his symptoms and history; and such reports, including those of a history of blurred vision in the years since his discharge from service, must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason (other than the absence of supporting evidence in the record) for doing so. 2. If any benefit sought on appeal remains denied, the agency of original jurisdiction should issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order. 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). _________________________________________________ Mark D. Hindin 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).