Citation Nr: 1337369 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 05-24 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a right eye disorder, to include as secondary to the Veteran's service-connected left eye disorder. 2. Entitlement to a rating evaluation in excess of 30 percent for the Veteran's service-connected left eye disorder. REPRESENTATION Veteran represented by: Blinded Veterans Association ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active service from February 1960 to January 1963, January 1978, and January 1991 to June 1991. This appeal comes to the Board of Veterans' Appeals (Board) from September 2004 and October 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Veteran's claim of entitlement to an increased rating for his service-connected left eye disorder first came before the Board in March 2007, at which time it was remanded to afford the Veteran an opportunity to testify at a hearing before a Veterans Law Judge, however the Veteran subsequently withdrew his request. These matters were both previously before the Board in December 2012 and were remanded for further development. As will be discussed below, the Board finds the remand directive was not completed and additional remand is required. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The Veteran is seeking an increased rating for his service-connected left eye as well as service connection for his right eye, to include as secondary to his left eye. In the previous decision the Board found the VA examination reports of record were not adequate for adjudication purposes and additional remand was required. Specifically, the Board noted that the March 2011 examination report indicated the examining physician could not explain the profound bilateral vision loss claimed by the Veteran and "highly recommended" a neurophthalmologist evaluation for a second opinion. Due to the March 2011 examiner's suggestion in the December 2012 remand the Board explicitly indicated the requested examination should be performed by a neurophthalmologist if possible. The Board explicitly stated that if an examination by a neurophthalmologist was not possible the RO/AMC should explain why. However upon remand the Veteran was not provided with an examination by a neurophthalmologist and no explanation as to why was provided by the RO/AMC. Instead, the Veteran was provided with a new VA examination in January 2013 with an ophthalmologist. Because the remand directive was not completed additional remand is required. Stegall v. West, 11 Vet. App. 268 (1998). (Holding a previous remand confers on the veteran, as a matter of law, the right to compliance with the remand orders). Moreover, the Board notes in the new January 2013 examination report the examining ophthalmologist stated, "I cannot resolve this issue without resort to mere speculation and a neurophthalmologist evaluation is highly recommended for a second opinion as previously recommended in previous C&P Eye Examinations." Simply stated, the second VA medical provider has made the same suggestion as the first. Therefore the Board finds the need for an examination with a neurophthalmologist was reconfirmed upon remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran with a VA examination with a neurophthalmologist to determine the current status and etiology of the Veteran's claimed right eye disorder (if any) and service-connected left eye disorder. If examination with a neurophthalmologist is not available then the RO/AMC should provide a written statement explaining why. The examining neurophthalmologist should review the Veteran's complete claims file in connection with the examination and a full rationale should be provided for any opinion expressed. Any required testing should be performed. Another ophthalmologist examination should not be obtained. The examiner should also specifically note the level of cooperation of the Veteran with regard to testing and any indication the Veteran is exaggerating his complaints should be noted in the examination report. Consistent with the factual history of the Veteran's visual acuity, including the Veteran's complaints of visual field loss, the examining neurophthalmologist should provide an opinion as to the following questions: a) Does the Veteran currently have a right eye disorder? If more than one, specifically identify each condition. b) For each identified right eye condition is it as least as likely as not (50 percent or greater) that the Veteran's current right eye disorder either began during or was otherwise due to his military service, or was caused or aggravated by the Veteran's service-connected left eye disorder? c) What is the precise nature and extent of the Veteran's service-connected left eye disorder, including any impairment of visual acuity, field loss, diplopia, pain, rest requirements, and/or episodic incapacity related to his eye. Corrected and uncorrected central visual acuity for distance and near should be measured based on the Snellen's test type or equivalent. If the examining neurophthalmologist cannot provide an opinion as to any of the questions above without resorting to speculation the examiner should clearly explain why not. The examiner should specifically indicate whether an opinion could not be rendered because of limited of medical knowledge or whether additional information could be obtained that would lead to a conclusive opinion. 2. THIS IS A COMPLEX CASE. Therefore the RO/AMC should ensure the examiner report complies with all directives in this remand. If the report is insufficient it should be returned to the examiner for necessary corrective action. 3. After all remand directives have been completed, readjudicate the appeal. If the claims remand denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). _________________________________________________ JOHN J. CROWLEY 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) (2013).