Citation Nr: 1315010 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 07-13 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for decreased visual acuity, to include as secondary to service-connected diabetes mellitus, type 2 and/or service-connected coronary artery disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In January 2011, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, another 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 the Veteran's claim so that he is afforded every possible consideration. In its January 2011 remand, the Board directed that the Veteran undergo a VA examination to determine the etiology of his claimed decreased visual acuity, to include the etiology of any diagnosed pituitary macroadenoma, glaucoma, cataracts, or other visual defect. The examiner was directed to opine as to whether any current eye disorder was causally or etiologically related to the Veteran's time in service or proximately due to (secondary to) or aggravated by the Veteran's service-connected diabetes mellitus, type 2 and/or the Veteran's service-connected coronary artery disease. The Veteran was afforded a VA examination in June 2011, with an addendum submitted in September 2011. The examiner diagnosed the Veteran with diabetes mellitus, type 2 without ocular complications, age-related cataracts starting to affect visual acuity, age-related vitreous syneresis, dry eye symptoms without clinical manifestations, presbyopia with dry eye symptoms, symptoms of glare when looking at bright lights, likely secondary to cataracts, complaints of poor peripheral vision with a completely normal visual field with test, correctable refractive error OS (left eye), and cataracts limiting vision OD (right eye). The examiner opined that it was not likely that any of the above-noted conditions were causally or etiologically related to the Veteran's time in service. Instead, he concluded that the conditions were all age-related or related to natural refractive error. The examiner noted further that the Veteran's cataracts were very mild and his visual acuity was 20/25 in the right eye and 20/20 in the left eye, and therefore, there was no visual disability. In rendering this opinion, he noted that cataracts are commonly associated with advancing age, smoking and obesity, all of which were associated with the Veteran, and that they were less commonly associated with diabetes. Accordingly, he concluded that the Veteran's cataracts were less likely than not associated with his service-connected diabetes. The Board finds that the examiner's opinion does not adhere to all of the remand directives. In this regard, although the examiner concluded that the Veteran's cataracts were not associated with his diabetes, which could be construed as meaning that the cataracts were not proximately due to or secondary to the diabetes; the examiner did not discuss whether the service-connected diabetes mellitus aggravated the cataracts. Furthermore, the examiner did not discuss whether the Veteran's cataracts, which were affecting his visual acuity, were proximately due to (secondary to) or aggravated by the Veteran's service-connected coronary artery disease, as he was directed to do in the Board's January 2011 remand. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall, the Court held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. As such, the Board has determined that VA has a duty to assist by seeking another medical opinion. See 38 C.F.R. § 4.2 (2012). The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Return the claims folder to the examiner who provided the June 2011 VA examination and September 2011 addendum and opinion so that he may determine the etiology of any current decreased visual acuity, including glaucoma, cataracts, or other visual defect. The examiner should review the claims folder again, and acknowledge such review in the examination report or in an addendum. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner should provide an opinion as to whether it is as likely as not (50 percent probability or more) that any current eye disorder is proximately due to (secondary to), or confirm the opinion previously stated in the September 2011 VA opinion, and provide opinion as to whether a current eye disorder, to include cataracts, is aggravated by the Veteran's service-connected diabetes mellitus, type 2. The examiner should also provide an opinion as to whether it is as likely as not (50 percent probability or more) that any current eye disorder is proximately due to (secondary to) or aggravated by the Veteran's service-connected coronary artery disease. The examiner is advised that the Veteran is competent to report in-service injuries and symptoms and that his reports must be considered in formulating any opinions. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. If the examiner who provided the previous examinations is unavailable, another medical professional should review the claims folder and provide the necessary opinions and rationales. Additional examinations should be afforded if the new examiner determines that one is necessary. 2. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the claim. If the appeal is not fully granted, the AOJ should issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order. 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). _________________________________________________ Tresa M. Schlecht Acting 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).