Citation Nr: 1326908 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 07-26 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for glaucoma, to include as secondary to service-connected renal calculi. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The RO in Winston-Salem, North Carolina, currently has original jurisdiction over the Veteran's claim. The Board issued a decision in September 2010 granting service connection for posttraumatic stress disorder (PTSD) and remanded the issue of entitlement to service connection for glaucoma for further development. This issue was remanded again in October 2011. That development has been completed, and the case has since been returned to the Board for appellate review. In October 2011, the Board observed that the Veteran's representative submitted a written brief presentation in which he appeared to raise the issues of entitlement to service connection for coronary artery disease, to include as secondary to service-connected PTSD, and entitlement to service connection for hypertension, to include as secondary to service-connected PTSD and renal calculi. He also raised a petition to reopen a claim of entitlement to service connection for a back disorder. As these three issues had been raised, but had not been adjudicated by the RO, the Board referred them to the RO for appropriate action. Upon review, these issues have still not been adjudicated, and the Board again refers them to the AOJ for appropriate action. In addition, in October 2011, the Board observed that it is unclear whether the Veteran's representative is alleging that there was clear and unmistakable error (CUE) in the April 1970 decision that previously denied service connection for a back disorder. Therefore, the RO was asked to clarify whether the Veteran and his representative are intending to file a CUE claim in the April 1970. This has still not been accomplished. 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 After carefully considering this matter, and for reasons expressed immediately below, the Board believes that this case must be remanded for further development. The Board regrets the delay associated with this remand, especially considering that this matter was the subject of two previous remands. However, the Board believes that another remand is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist. The Board remanded the Veteran's claim in October 2011, in part, to determine the nature and etiology of any glaucoma that may be present. In the event that glaucoma was diagnosed, the examiner was asked to comment on whether the Veteran's disability is casually or etiologically related to his active duty service, to include his symptomatology therein. If it was determined that the Veteran's glaucoma was not related to his military service, the examiner was asked to comment on whether the glaucoma was caused, or aggravated, by the Veteran's service-connected renal calculi. Following the Board's remand, the Veteran was afforded a VA examination in November 2011. After a review of the claims file and a clinical examination, the VA examiner diagnosed the Veteran with glaucoma. While the examiner indicated that this disability was "not related to military service" and was "not related to the 'service connected renal caculi'" the examiner did not provide any rationale for these statements. There was also no discussion of whether the Veteran's service-connected renal calculi may have aggravated his glaucoma, which had been requested in the remand. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 30, 312 (2007). In addition, the Board's October 2011 remand requested that the AMC inform the Veteran of the elements of a claim for secondary service connection under 38 C.F.R. § 3.310(b) and provide him the full opportunity to respond. This has not been accomplished. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court held that compliance with remand instructions is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Therefore, the Board concludes that a remand is necessary to ensure compliance with its prior directives. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send the Veteran a notice letter in connection with his claim for service connection for glaucoma. The letter should specifically advise him of the information and evidence necessary to substantiate the claim on both a direct and secondary basis. 2. The Veteran should be afforded a VA examination to determine the nature and etiology of any glaucoma that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The examiner should comment as to whether it is at least as likely as not that that the Veteran currently has glaucoma that is causally or etiologically related to his military service, including his symptomatology therein. In particular, the Veteran's service treatment records document him as having a visual defect in July 1968, and he reported having a medical history of eye trouble. It was also noted that he wore glasses and contact lenses. The Veteran was provided corrective lenses in July 1969, and an examination later that month further revealed abnormal ocular motility. He once again reported having a medical history of eye trouble, and it was noted at that time that he had myopia. The examiner should also state whether it is at least as likely as not glaucoma was either caused by or permanently aggravated by his service-connected renal calculi. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should set forth the provisions of 38 C.F.R. § 3.310. 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).