Citation Nr: 1315068 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 97-26 617A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a left sided visual defect, to include optic neuropathy. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran, his brother, and his cousin ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active military service from June 1954 to June 1956. The case originally came before the Board of Veterans' Appeals (Board) on appeal from a July 1997 rating decision by the Department of Veterans Affairs (VA), regional office (RO) in Atlanta, Georgia. In April 1999 the Veteran and his cousin testified at a Travel Board hearing in Atlanta, Georgia. A transcript of that hearing is in the claims file. In July 1999 the Board remanded the case for additional development; and in April 2003, the Board denied the Veteran's claim. The Veteran appealed the Board's April 2003 denial to the U.S. Court of Appeals for Veterans Claims (Court). In an October 2003 Order, the Court granted an unopposed appellee's Motion, vacated the Board's April 2003 decision, and remanded the matter to the Board for readjudication. In January 2004, the Board remanded the case for additional development. In a November 2004 decision, the Board again denied the Veteran's claim, and the Veteran again appealed to the Court. In a June 2006 Order, the Court granted a Joint Motion for Remand, vacated the Board's 2004 decision, and remanded the matter for action pursuant to the parties' Motion. In April 2007 and June 2012 the Board remanded the case for additional development. Unfortunately, and for the reasons that follow, the Board finds that further action is needed. Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND In its June 27, 2012 remand the Board, pursuant to the parties' Joint Motion for Remand, directed that efforts be made to obtain the September 17, 2004 medical opinion authored by Dr. Nancy Newman of the Neuroophthalmology Clinic at Emory University; an opinion that the December 2008 VA examiner had used to bolster his opinion. In a letter to the Veteran dated June 28, 2012, the AMC asked the Veteran for a copy of the evidence from Dr. Newman or for authorization for VA to obtain it. No response was received, and a subsequent request was not sent. Unfortunately, it appears that the address used by the AMC was not viable. See, e.g., September 2011 notice from U. S. Postal Service advising that mail directed to [the address used by the AMC in its June 2012 letter] was undeliverable because there was no mail receptacle at that location. In this regard, the Board notes that a power of attorney executed by the Veteran in June 2012 contains the mailing address used by the Board in its June 27, 2012 remand letter and other communications to the Veteran. As it seems that the AMC's June 2012 was not sent to the appropriate address of record, remand for renewed efforts to obtain the September 17, 2004 medical opinion authored by Dr. Nancy Newman is warranted. 38 C.F.R. § 3.159(c) In addition to the foregoing, the Board also directed, in its 2012 remand, that once properly developed, the claims file be returned to the 2008 VA examiner (an ophthalmology resident) for expansion/clarification of his opinion. The Board further instructed that if the 2008 examiner was unavailable the Veteran should be accorded a new VA examination. In July 2012 the AMC sent the claims file for review and an opinion by a totally different VA examiner. Remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the Board's remand order). Stegall v. West, 11 Vet. App. 268 (1998). As it appears that the 2008 examiner is no longer with VA, and since the claims file is already being returned for acquisition of missing private medical evidence that formerly was of record, the Board is of the opinion that the Veteran should be accorded a new VA examination. Stegall. On remand any outstanding VA treatment records dating from August 2011 should be associated with the Veteran's claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Issue a letter addressed to the Veteran at his post office box, (identified on the VA Form 21-22 dated in June 2012, among other places, or more current address of record if one actually becomes established) asking the Veteran to either send VA a copy of the September 17, 2004 medical opinion authored by Dr. Nancy Newman of the Neuroophthalmology Clinic at Emory University; or, to send authorization for VA to obtain this evidence. 2. Associate the Veteran's VA treatment records dating from August 2011 with the claims file. 3. After completion of both of the above steps, schedule the Veteran for a VA eye examination. All indicated tests should be done, and all disorders afflicting the left eye must be identified. The examiner is then requested to state: a) for each disorder afflicting the left eye, whether the disorder pre-existed the Veteran's entry into active duty service in 1954. b) If any diagnosed ailment of the left eye is felt to have pre-existed the Veteran's entry into active duty service, i. whether there was a permanent increase in the severity of the disease during service; and, if so, ii. whether the increase in severity was due to the natural progress of the disease. c) for each disorder afflicting the left eye that did not pre-exist the Veteran's entry into active duty service, whether it is at least as likely as not (i.e., a 50 percent probability) that the disorder was incurred during active duty service or is related to any incident of active duty service, including the in-service trauma to the Veteran's face in 1955 while ice skating, during which his nose was fractured. A rationale for all opinions proffered must be set forth in the examination report. If an opinion cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically so state in the examination report, and explain why that is so. 4. After completion of all of the above, readjudicate the Veteran's claim. If the claim remains denied, provide the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran 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). _________________________________________________ MICHAEL E. KILCOYNE 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).