Citation Nr: 1329285 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 10-15 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for bilateral eye disability, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Veteran represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1962 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In April 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 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 In November 2012, the Board remanded the Veteran's claim for additional development. Specifically, the Board instructed that the AMC forward the Veteran's claims file to the October 2011 VA examiner for an addendum opinion, or, if unavailable, an appropriate clinician to determine the etiology of the Veteran's current eye disabilities. The Board requested an opinion as to whether it was at least as likely as not that the Veteran had a current eye disability etiologically related to service or proximately due to or aggravated by his service-connected diabetes mellitus. In addition, the Board instructed that the examiner consider the March 2011 record from Pearle Vision Center and reconcile the opinion with the positive nexus opinion provided by Dr. D. Mantz in June 2010. In December 2012, the Veteran underwent a VA examination conducted by a VA examiner other than the October 2011 VA examiner. The record indicates that the VA examiner reviewed the Veteran's claims file, to include the March 2011 record from Pearle Vision Center, and opined that the Veteran demonstrated no retinal changes that could be associated with his diabetes mellitus. The VA examiner found that the Veteran demonstrated mild nuclear sclerotic cataracts that were age-related and not visually significant. The VA examiner opined that the Veteran's current level of cataract was not likely aggravated or made worse by his diabetes based on the current examination. It was also stated that although diabetes could accelerate the progression of age-related nuclear sclerotic cataracts, this was not the case for the Veteran, whose nuclear sclerotic changes were at the expected level for his age. The VA examiner also diagnosed presbyopia and opined that it was age-related and not related to diabetes. The VA examiner diagnosed dermatochalasis of both upper lids that was not related to diabetes. The VA examiner also diagnosed visual field constriction, both eyes, and opined that the constricted visual fields were not likely related to the Veteran's diabetes given the absence of retinopathy. Here, the Board finds the December 2012 VA examiner's opinion inadequate as it did not address the theory of entitlement to service connection on a direct-incurrence basis. Specifically, the VA examiner did not provide an opinion as to whether it was at least as likely as not that the Veteran had a current eye disability etiologically related to active duty service. As noted in the Board remand, a June 2010 opinion by Dr. D. Mantz links the Veteran's eye condition to his military service. As the VA examiner did not address whether any eye disability is directly related to active duty and did not reconcile the opinion with that of Dr. D. Mantz, a remand is warranted for an addendum opinion. Accordingly, the case is REMANDED for the following actions: 1. Forward the Veteran's claims file to the VA examiner who conducted the December 2012 VA examination to provide a supplemental opinion as to whether it is at least as likely as not (50 percent probability or more) that any eye disability is etiologically related to active duty. In rendering the requested opinion, the examiner should address all eye disabilities diagnosed during the pendency of the appeal. In addition, the examiner should specifically address and reconcile his opinion with the June 2010 positive nexus opinion provided by Dr. D. Mantz linking the Veteran's eye condition to service. If the December 2012 VA examiner is not available, schedule the Veteran for a VA examination with an appropriate clinician to determine the etiology of any eye disability diagnosed during the pendency of the appeal. All necessary tests should be performed. In addition, the claims file should be reviewed in conjunction with the examination, and the examination report should indicate that such a review was performed. The examiner should render an opinion as to whether it is at least as likely as not (50 percent probability or more) that any eye disability diagnosed during the pendency of the appeal is etiologically related to service. In this respect, the examiner should specifically address and reconcile his/her opinion with the June 2010 positive nexus opinion provided by Dr. D. Mantz linking the Veteran's eye condition to service. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale for any opinion expressed must be included in the examination report. 2. Thereafter, readjudicate the issue of entitlement to service connection for bilateral eye disability, to include as secondary to service-connected diabetes mellitus. If the benefit sought on appeal remains denied, provide the Veteran and his representative a Supplemental Statement of the Case and an adequate opportunity to respond before the case is returned to the Board for appellate review. 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). _________________________________________________ U. R. POWELL 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).