Citation Nr: 1317701 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 04-11 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for the residuals of a left eye injury. 2. Entitlement to an compensable rating for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from September 1986 to February 1991. This matter comes before the Board of Veterans' Appeals (Board) from a March 2003 and March 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a left eye disability and granted a noncompensable rating for a left knee disability. In September 2006, the Board denied the claim for service connection for a left eye disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (Joint Motion), a March 2008 Order of the Court remanded the claim for readjudication in accordance with the Joint Motion. In March 2011, the claim was remanded to afford the Veteran a hearing before the Board. In November 2012, the Veteran withdrew her hearing request. 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 Additional development is necessary prior to further disposition of the claims. With regard to the claim for service connection for a left eye disability, the March 2008 Joint Motion found that the October 2004 VA nexus opinion on the matter was inadequate. Specifically, the October 2004 VA examiner determined that the reduced visual field found in the left eye was not due to the previous trauma in service, but the origin was unknown. Such a rationale was not adequate because it was inconclusive as to etiology and did not explain why the current visual field defect was unrelated to previous trauma. In June 2010, the Veteran underwent a second VA examination, however, the resulting opinion is also inadequate. The examiner concluded that an opinion as to the etiology of the Veteran's decreased vision in the left eye could not be made without resort to mere speculation. The examiner did not provide any rationale for that opinion. Moreover, the Veteran has stated that the examiner lacked respect for her claim and did not treat her fairly. Accordingly, a new VA examination should be obtained, and in the event that the Veteran's current left eye disability cannot be related to the in-service eye trauma, a rationale for that opinion must be provided. In order to assist the examiner, service treatment records reflect that in September 1988, the Veteran was hit in the left eye with a baseball. She put ice on her eye to stop the swelling, but then noticed that the eye was bloodshot and it was painful. She had blurred vision. The left eye was discolored and swollen. Vision in the left eye was 15/20. The assessment was subconjunctival hematoma. In October 1988, the Veteran had pain and a knot on the left eye. She had photophobia. The area of hemorrhage had not changed. There was a one centimeter tender mass in the eye. The assessment was subconjunctival hematoma, slowly resolving. A December 1990 separation examination did not document any left eye symptoms, though she did report having decreased vision. The Veteran contends that ever since service, she has suffered from blurred and decreased vision in the left eye, trouble with bright lights at night, and headaches. With regard to the claim for an increased rating for a left knee disability, the most recent VA examination to assess the severity of that disability was conducted in February 2009 and is now considered to be remote. In order to accurately assess the current nature of the Veteran's left knee disability, a new VA examination should be obtained. Also, more recent treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any outstanding treatment records relevant to both of her claims. After securing any necessary authorization from her, obtain all identified treatment records, as well as any available VA treatment records dated since January 2009. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran of the attempts made and allow the opportunity to provide such records. 2. Schedule the Veteran for a VA examination to determine the etiology of her left eye disability, manifested by such symptoms as vision loss, difficulty seeing at night, blurred vision, or a visual field defect. The examiner should review the claims file and state such review. The examiner should provide a rationale for all opinions reached. Is it at least as likely as not (within the realm of 50 percent probability or greater) that the Veteran's left eye disability was caused or aggravated by the left eye trauma in service? If an opinion cannot be reached without resort to speculation, that finding should be fully explained. 3. Schedule the Veteran for a VA examination to ascertain the current severity of her left knee disability. The examiner should review the claims file and state such review. The examiner should conduct all necessary testing to include range of motion testing, limitation of motion on repetitive testing, evidence of arthritis, and stability testing. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). _________________________________________________ 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).