Citation Nr: 1337364 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-18 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a left eye disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to September 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2009 of a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for an eye injury. The Veteran testified before the undersigned Veterans Law Judge at a September 2012 videoconference hearing. 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 appellant if further action is required. REMAND In December 2012, the Board remanded the issue so that the Veteran could be afforded a new VA examination. In that remand, the Board mandated that the VA examiner identify all current diagnoses and disabilities of the left eye and determine whether it was at least as likely as not that any diagnosed left eye disability is related to service. The examiner was instructed to comment on the Veteran's assertions that he experienced vision problems within months of his discharge, and to discuss the relevance of an internet article submitted by the Veteran in September 2012. He was instructed to include a complete rationale for all opinions expressed. In February 2013, the Veteran was afforded a new VA examination. The examiner stated that the Veteran had been diagnosed with corneal abrasion/burn and choroidal nevi in each eye. The examination report also describes bilateral cataracts. The examiner reviewed the claim file and the September 2012 internet article. The examiner concluded that "there is no evidence of residual injury from the described corneal abrasion incident." Regarding the internet article, he found that there was no evidence of corneal compromise and therefore the Veteran was not at any substantial risk of corneal erosion or increased risk of infection. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The February 2013 VA examiner complied with some, but not all, of the Board's instructions. The VA examiner focused on whether a disability of the cornea was related to his in-service injury. The examiner failed, however, to address whether there was a relationship between the Veteran's in-service left eye injury and the two other eye disabilities (choroidal nevi and cataracts) demonstrated on examination. The remand instructions mandate that each disability must be addressed and that an etiology opinion must be provided for each disability found on examination. Additionally, the examiner failed to consider the Veteran's assertion that he had decreased vision within months of separation from service as it pertained to the issue of service connection. An account of symptomatology within lay observation must be considered in the evaluation of claims. Buchanan v. Nicholson, 451 F.3d 1331, 1335. The physical examination appears to be thorough and was based upon a review of the claim file; therefore, a new examination is unnecessary. Instead, the claim file should be returned to the February 2013 VA examiner so that he may provide a more complete examination report which complies with all of the Board's instructions. Accordingly, the case is REMANDED for the following action: 1. Return the claim file to the February 2013 VA examiner, if possible. If the February 2013 VA examiner is unavailable, provide the claim file to a new VA examiner. Following a review of the claim file, the examiner is to identify all current diagnoses and disabilities of the left eye, and must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed left eye disability is related to service. A full and complete rationale for all opinions expressed must be provided. The examiner is to specifically comment on the Veteran's assertions that he experienced vision problems within months of his discharge, and the findings of the internet article submitted by the Veteran. The examination report must include a complete rationale for all opinions 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 (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Prior to rendering a determination; the entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, VBMS, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA or VBMS, any relevant treatment records contained therein that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. 2. Thereafter, review the claim file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant 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). _________________________________________________ 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).