Citation Nr: 1338823 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 08-21 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left eye disorder, to include amblyopia, esophoria, and exotropia. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul Sorisio, Senior Counsel INTRODUCTION The Veteran served on active duty from October 1962 to October 1964. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2010, the Veteran testified at a hearing before the undersigned at the RO and a transcript of that hearing has been associated with the claims file. This appeal was previously before the Board on two occasions. In June 2012, the Board determined that new and material evidence had been submitted to reopen the claim of entitlement to service connection for a left eye disability, to include amblyopia and esophoria. The Board remanded the reopened issue for additional development. In May 2013, the Board again found additional development was needed. The appeal is again REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. REMAND A remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (noting that the Veteran is entitled to substantial, but not strict, compliance with a remand order). In the Board's last Remand (issued in May 2013), the examiner was directed to answer several questions. Some of the questions were either not answered or a comprehensive rationale was not provided. In light of this, the Board is remanding again to obtain further assistance from the examiner who completed the June 2012 eye Disability Benefits Questionnaire (DBQ) and the June 2013 medical opinion DBQ in resolving these pertinent questions. Accordingly, the case is REMANDED for the following actions: 1. Forward the Veteran's VA claims file to the clinician who performed the June 2012 eye DBQ and June 2013 medical opinion for a complete review of the record. The Board appreciates this clinician's efforts to answer the complex questions involved in this Veteran's appeal. The entire claims file (i.e., both the paper claims file and any relevant records contained in the Virtual VA and/or VBMS eFolders) and a copy of this Remand should be made available to and be reviewed by the clinician in conjunction with the examination, and it should be confirmed that such records were available for review. If the examiner who completed the June 2012 eye DBQ and the June 2013 medical opinion DBQ is not available, forward the claims file to a similarly qualified clinician. This clinician must then review the claims file and answer all of the applicable questions listed below. For the diagnosed esophoria, please offer an opinion as to the following questions: a) Esophoria was noted to be a developmental defect on the June 2013 DBQ. Please explain why. b) Was this defect subject to a superimposed disease or injury during service? If the answer is "Yes," please describe the resultant disability. For the diagnosed amblyopia (see June 2012 eye DBQ), please offer an opinion as to the following questions: a) Are there markings on the October 9, 1962 induction examination that explicitly constitute a notation of amblyopia that was existent at that time? Note: The October 23, 1962 service treatment record is not legally considered the Veteran's entrance examination. In answering this question, only consider and discuss the Report of Medical Examination dated October 9, 1962. b) Amblyopia was noted to be a developmental defect on the June 2013 DBQ. Please explain why. c) Was this defect subject to a superimposed disease or injury during service? If the answer is "Yes," please describe the resultant disability. For the diagnosed exotropia (see June 2012 eye DBQ), please offer an opinion as to the following questions: a) Is the Veteran's diagnosed exotropia, a developmental defect or a developmental disease? For VA purposes, a defect differs from a disease in that the former is "more or less stationary in nature" while the latter is "capable of improving or deteriorating." Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). b) If the diagnosed exotropia is a developmental defect, was this defect subject to a superimposed disease or injury during service? The examiner is specifically requested to discuss the Veteran's March 1964 fall in service. If the answer is "Yes," please describe the resultant disability. c) 1) If the diagnosed exotropia is a developmental disease, did this disease, which was not noted upon entrance into service, "clearly and unmistakably" (obviously or manifestly) exist prior to the Veteran's entry into active duty service in October 1962? 2) If the exotropia clearly and unmistakably existed prior to service, was this disease "clearly and unmistakably" (obviously or manifestly) not aggravated by military service? Note: In this special context, "aggravation" has occurred where there is an increase in disability beyond the natural progress of the disease. 3) If the exotropia did not clearly and unmistakably exist prior to service and/or was not clearly and unmistakably not aggravated by military service, then assume for the purposes of answering the following question that the claimed condition did not exist prior to service. Is it "at least as likely as not" (50 percent or greater probability) that the exotropia was incurred in or caused by an in-service injury, event, or disease? The examiner is specifically requested to discuss the Veteran's March 1964 fall in service. d) If the diagnosed exotropia is found to be neither a developmental defect nor disease, is it at least as likely as not (50 percent or greater probability) that this left eye disorder was caused by, or incurred during, active military service? A thorough rationale, to include reference to relevant evidence of record as appropriate, should be provided for all opinions expressed. If the reviewing clinician cannot provide a requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ DONNIE R. HACHEY Acting 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).