Citation Nr: 1328412 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-08 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for glaucoma. (The issue of entitlement to service connection for hypertension is the subject of a separate decision of the Board of Veterans' Appeals (Board).) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty in the Navy from October 1968 to October 1972, and in the Air Force from August 2004 to January 2005. He had additional service in the Navy Reserves from 1973 to 1998, and in the Air National Guard from 1998 to 2004. This matter is before the Board from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. An August 2010 Board decision reopened the Veteran's previously denied claim of entitlement to service connection for glaucoma on the basis that new and material evidence had been received. The Board decision also remanded the issue of entitlement to service connection for glaucoma for additional development. In July 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claim folder. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" (VVA) system to insure a total review of the evidence. The issue of entitlement to service connection a scarred left cornea has been raised by the record (see Veteran's January 2013correspondence), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the issue, and it is referred to the AOJ for appropriate action. This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Any future consideration of this appeal should take into consideration the existence of the VVA file. VA will notify the Veteran if further action on his part is required. REMAND Despite the lengthy procedural history of this case, corrective action is required for this claim. The Veteran maintains that he has glaucoma that was incurred in or aggravated by his active military service. In the August 2010 remand, the Board instructed the RO or AMC (in pertinent part) to arrange for a VA examination. After reviewing the claims file, the examiner was to provide an opinion as to as to whether it is at least as likely as not that the Veteran's glaucoma was aggravated by an injury or disease incurred during the Veteran's second active duty period, including a possible traumatic brain injury. In this regard, the evidence of record shows that the Veteran began receiving treatment for glaucoma in 1989, prior to his second period of active duty. Service treatment records show that the Veteran complained of eye pain during his deployment in 2004. Prior to his deployment, corrected distance vision in each eye was 20/20. Upon his return, corrected distance vision in each eye was 20/30. Furthermore, the Veteran's August 2007 traumatic brain injury screening was positive; at that time, he reported a shooting pain in the head and eye. There was also post- deployment evidence of a scotoma. The Veteran underwent a VA eye examination in October 2011. In the October 2011 examination report and December 2011 addendum, the examiner opined (in pertinent part) that that the Veteran's glaucoma was not aggravated by his second period of active service. Although the examiner stated that he reviewed the claims file, he did not discuss or account for the change in corrected distance vision and onset of scotoma after deployment, the positive traumatic brain injury screening, or the Veteran's complaints of eye pain during his deployment and thereafter. The Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). The Court has indicated, additionally, that, if the Board proceeds with final disposition of an appeal and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Moreover, the Court has held that, once 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. 303, 312 (2007); 38 C.F.R. § 3.159(c)(4) (2012). Although there is no requirement imposed on a medical examiner to provide detailed reasons for an opinion, Ardison v. Brown, 6 Vet. App. 405, 407 (1994), it is incumbent on the VA examiner to consider all of the relevant evidence before forming an opinion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, without a discussion of the complaints and findings noted during and after the Veteran's second period of active duty, the Board cannot conclude that the VA examiner's opinion is based upon consideration of all of the relevant evidence. Thus, the Board finds that the 2011 VA opinion is not adequate to rely on in evaluating the merits of this service connection claim. Accordingly, the case is REMANDED for the following action: 1. Return the claims folder to the examiner who conducted the October 2011 VA eye examination and provided the December 2011 VA opinion (if available) and ask the examiner to review closely the entire record and to prepare an addendum addressing the following questions: (a) Does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the Veteran had glaucoma prior to his entry onto active duty for his second period of service in August 2004? (b) If the evidence of record clearly and unmistakably shows (i.e., it is undebatable) that the Veteran had glaucoma prior to his entry onto active duty for his second period of service in August 2004, does the evidence clearly and unmistakably show (i.e., it is undebatable) that the pre-existing glaucoma did not undergo any permanent increase in severity as a result of his second period of active duty, to include the change in corrected distance vision and onset of scotoma after deployment, the positive traumatic brain injury screening, or the Veteran's complaints of eye pain during his deployment and thereafter? (c) If the evidence of record does not clearly and unmistakably show that the Veteran had glaucoma prior to his entry onto active duty for his second period of service in August 2004 (i.e., it is debatable), is it at least as likely as not (i.e., at least 50 percent probable) that glaucoma had its onset during, or is otherwise related to, the Veteran's second period of active service? In answering this question, the examiner must address the effect, if any, of the change in corrected distance vision after deployment, the onset of scotoma after deployment, the positive traumatic brain injury screening following service, or the Veteran's complaints of eye pain during his deployment and thereafter. A complete rationale must be given for all opinions and conclusions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (additional facts are required, or the examiner does not have the needed knowledge or training). If this examiner is not available, the Veteran is to be scheduled for a new VA eye examination, in which the examiner is to answer the above questions. A complete rationale must be provided for all opinions. 2. Then, readjudicate the claim of entitlement to service connection for glaucoma. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See 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 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). _________________________________________________ RONALD W. SCHOLZ 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).